When discussing divorce, most individuals focus on two primary areas: their children and their property. In conversations with potential clients at the Law Office of Bryan Fagan, I often liken myself to a wizard with a magic wand, asking them to imagine I could grant them three wishes related to their divorce. One common wish people express is, “How do I divorce my wife and keep everything?” Typically, along with desires for full custody of their children, they seek to retain all their property.
We have written a lot of blog posts here regarding what full custody means to people. The reality is that full custody to you may mean something completely different than what full custody means to me. Regardless, full custody usually means that you get your kids more often than your spouse does. You want to have your children more often than not, and as a result, the idea of full custody is extremely appealing to you. You may even tell your attorney that this is your number one goal for the case.
When it comes to the part of your case, given the property, it is also understandable to want to retain as much of your property as possible. Most people, understandably, do not know the ins and outs of Texas property law. The Community property laws of Texas define property in your marriage. As a result, before we can further discuss subjects relating to property division, we need to know a little bit about the Community property laws in Texas and how they stand to impact your divorce. From there, we can explore how to get a divorce and keep everything as far as your property is concerned.
Community property laws in Texas
Texas is a Community property state. This means that our state adheres to principles related to Community property when it comes to dividing assets, personal property, and real property at the time of someone’s death or at the time of divorce. There are many nuances to the world of Community property law. Lawyers spend a great deal of time learning and then updating their knowledge about Community property because it is an important part of a divorce. We will not be able to cover the entirety of Community property law in one blog post. However, I would like to share some of the basic tenets of Community property law that may become relevant in your divorce.
Community Property Presumption in Divorce
In divorce proceedings, it’s crucial to remember that all property is presumed to be Community property. Community property includes assets acquired or purchased by both spouses during the marriage. Additionally, separate property, owned individually before marriage or acquired through gift or inheritance during marriage, exists distinct from Community property.
Either you or your spouse bears the burden of proving property is separately owned. Otherwise, all property is presumed to be jointly owned. Consequently, it’s subject to division in divorce proceedings, either by a family court judge or through negotiation between you and your spouse. It is important to understand that the law will aim to divide the property in a divorce equitably. This means that fairness and even division based on the circumstances of your case will be the baseline assumption.
Property Division: Realities and Considerations
Do not assume that a judge will take all of your property, determine its value, and then divide things perfectly down the middle. That is an unlikely outcome; it is also impractical. It will be much more common to imagine putting all of the property you and your spouse own in the middle of the kitchen table and then dividing the property based on your case’s many circumstances. Remember, not only do you have the items in your house to divide, but you have a family home, vehicles, retirement funds, and simple checking and savings accounts.
These are just the sort of assets and pieces of property that most of us have, period; some of you will have additional assets, and many more will have debts that may be part of the community estate. For these reasons, it’s crucial for you and your attorney to organize your property, estimate its value, and collaborate on how you envision its division ideally. However, there are no guarantees regarding how property will be divided. However, you can begin to determine how you best see the property divided and then go from there based on the circumstances of your case.
What role will the circumstances of your case play in how property is divided?
All else being equal, you can expect marital property to be divided fairly evenly between you and your spouse during the divorce. Of course, your divorce will have certain circumstances at play that are unique to you and your spouse’s marriage and your family’s life. Consequently, assuming property will be divided evenly down the middle would be unfair. Even in seemingly ordinary circumstances, everyone’s lives entail factors that influence the division of their Community property in a divorce.
Family Circumstances and Property Division in Divorce
First, let’s consider the circumstances involved in your family. The most crucial distinction you can make when a divorce is whether or not you have children. Having children means considering additional considerations when dividing up your largest asset in all likelihood: your family home. The simple truth is that many families value consistency and stability for their children over factors like what is in everyone’s best interests financially. This means that rather than selling a family home after divorce, you and your family may choose to remain in the home to provide your children with some sense of normalcy after the case.
Whether or not this is a good idea depends almost entirely on you and your family’s circumstances in outlook. I will give clients the general advice that children are fairly resilient and probably more resilient than we realize. Keeping a family home when selling it would be more prudent may be more intimidating for certain families if the children have had difficulty managing the divorce. Bear in mind that in my experience, the better parents are at managing divorce, the better off the children will be as well.
Keep this in mind when it comes to your attempts to determine what to do with the family home. If your goal is to end up with the family house in your divorce, you should examine why you want the house. Are you solely considering it for your children? Do sentimental attachments to the house drive your decision? Does the house’s location, which you envision for many years, influence your choice? Is it driven by ego, wanting the house without your spouse’s enjoyment? These are all legitimate, very human considerations. As a result, you should consider all these reasons we make determinations in your best interest financially.
Prioritizing Long-Term Family Well-Being in Divorce
Ideally, what you want to avoid is a situation where you are making decisions based on what is best for your family’s long-term future. It is understandable to want to make decisions based on the short-term needs of your children. Your children will be with you every single day in spirit, even if they are away from you in reality. This may be because you, too, take a longer look at keeping certain assets like a house that may provide the children with some degree of normalcy, theoretically seeing stability in their lives.
If you do not have children, you will likely be able to approach your case from a much more objective perspective. We need to realize that it is OK to make decisions based on emotion and not purely objective considerations. Nobody would say not to consider your children in a divorce. However, I would tell you that if you do not have children, you need to be able to approach her regarding Community property much more objectively.
Factors Affecting Property Division in Divorce
A court would also look to factors like your educational level, work experience, physical health, and age in determining how to divide the property. These factors are all relevant because they play into whether or not do you would be able to land on your feet from a financial standpoint after your divorce. If you can secure and maintain employment post-divorce, you might not require a disproportionate share of your community estate. However, if you face challenges with financial independence, property division may need to facilitate your transition into post-divorce life financially.
For example, if your spouse has been the primary breadwinner throughout your marriage, you may not have become accustomed to working regularly. As a result, you may need to transition more slowly into your post-divorce life from a financial standpoint. Therefore, receiving a disproportionate share of your community estate may end up serving you better in the sense that you will be able to survive financially on your separate income.
Marital Conduct’s Impact on Property Division
Additionally, a court may look towards the role that you and your spouse played in the breakup of the marriage when determining how to divide Community property. For example, if you committed some marital wrongdoing, whether it be infidelity, adultery, abandonment, abuse, or wasting of community assets, then you may be in a position where you could receive more property than otherwise. The reason being is that a court will want to assess your role in the breakup of the marriage, if any, before determining how to divide the property.
This is where fault grounds for divorce come into play. There is no requirement for you to specify specific grounds for divorce in your original petition. Most divorces do not find that fault grounds played a role. However, specifying fault grounds in a divorce can change the division of property. The tricky part of this discussion is the evidence to prove the fault grounds a curd and that they impacted your marriage.
It often surprises many people to learn that adultery, for instance, doesn’t always lead to the victim’s spouse receiving a disproportionate share of the property. The reason being is that a court will assess the impact of which the infidelity had on your marriage period; for example, if the infidelity did not result in wasting of community assets, then it may be that the infidelity does not play much of a role at all in the division of your property. Instead of assuming that infidelity will play a certain role in your case, you should speak with your attorney before your divorce so that you can plan for any outcomes that may occur.
Is it realistic to expect that you can keep everything in your divorce?
While having goals is never a bad thing, I recommend having goals based on reality and the circumstances of your case. for the most part, it is not realistic to be able to walk away from your divorce, keeping all of your Community property. In comparison, this is true regarding Community property, which does not cover all subjects related to your divorce and property. For instance, you can retain all of your separate property since that is not divisible by a judge in your divorce.
Considerations in Community Property Division
Community property presents a different scenario altogether. In most divorce cases, which are no-fault divorces, there’s no official fault ground stated for the divorce. As a result, it’s unlikely that you would be awarded a disproportionate share of your community estate. Additionally, you must consider various factors such as your educational level, work experience, and age to determine the likelihood of being awarded the majority of your community property.
Even then, it is unrealistic to expect that you could receive all of the property in your divorce. Judges will aim to award property equitably. Even if you feel like the causes of the divorce are your spouse’s fault, this will not necessarily lead to a judge agreeing with you. If you and your spouse are about the same age, earn similar incomes, and have similar levels of education. You are even less likely to receive a disproportionate share of your community estate in your divorce.
Maximizing Your Share: Tips for Divorce Proceedings
If you are reading this and want to do everything possible to r receive a disproportionate share of your community in the state, you may be asking yourself what comma, if anything, can you do to increase your likelihood of a favorable outcome in this regard. The first thing that I would tell you is that it is important to have an attorney to assist you. When requesting the court to deviate from the standard property allocation, you must organize and prepare to present evidence demonstrating why you deserve a disproportionate share of your community property in the divorce.
Inventorying your property, determining an estimate of its value, and then understanding the relevant circumstances when dividing up that property is important. It would be difficult to bring all these pieces of information together with experience in previously handling divorce cases. Having an attorney available to rely on for advice and perspective is important. Bringing all these competing interests together and determining what your best course of action is what an attorney does for a living.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our experienced attorneys offer free of charge consultation six days a week via phone, video, and in-person meetings. These consultations are a great opportunity for you to learn more about the world of Texas family law and how your family’s circumstances may be impacted by the filing of a divorce or child custody case.
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Frequently Asked Questions
Divorcing your spouse without losing everything requires careful planning, negotiation, and possibly the assistance of a skilled divorce attorney. It’s essential to understand the laws in your state, explore mediation options, and work towards a fair settlement that protects your assets.
In Texas, the concept of “community property” governs the division of assets in a divorce. In general, assets acquired during a marriage are considered community property and are typically subject to equal division. The duration of the marriage is not the sole factor in property division, but it can be a consideration in some cases.
In Texas, both spouses have a right to an equal share of community property acquired during the marriage. The division of assets is not automatically 50/50, but the court aims for a fair and equitable distribution based on the specific circumstances of the case.
While the goal is to achieve a fair division of assets in a Texas divorce, it may not always result in an exactly equal split. The court considers various factors, including each spouse’s contribution to the marriage, earning capacity, and the needs of each party. The division may not be exactly half, but the aim is to achieve an equitable outcome.
Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan, PLLC, routinely handles matters that affect children and families. If you have questions regarding divorce, it’s important to speak with one of our Houston, TX, Divorce Lawyers right away to protect your rights.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
