If you’ve been married for virtually any amount of time, you and your spouse have likely accumulated some marital assets, and if you’ve been married for a while now, you’ve likely amassed considerably more. If you’re facing a divorce, these assets will need to be divided between you fairly, which is something of a loaded word when it comes to divorce.
Working with an experienced Round Rock property division attorney from the start is always advised.
Too Many Couples Gloss Over the Matter of Community Property
Divorcing couples – especially those who haven’t been married long – tend to assume that they don’t have any community property and, therefore, don’t give its division much thought. While Texas is what is known as a community property state when it comes to divorce, community property is just a fancy way of saying those assets that you acquired while you were married.
If you, your spouse, or the two of you together came to own the asset while you were married, it’s community property, and this means it must be divided between you in a just and right manner upon divorce.
Exceptions to the Marital Asset Rule
A couple can acquire considerable assets in even a few short years, and putting careful thought into the division of these assets in the event of divorce can make a considerable difference in your financial future. The only exceptions when it comes to community property include the following:
Any gifts that either spouse received in their name alone during the marriage, including gifts given by one spouse to the other
Any inheritances that were bequeathed to one spouse alone during the marriage
The pain and injury portion of any personal injury claim that was initiated during the marriage
These are all separate assets that belong solely to the recipient.
Separate Assets
While the separate assets that you each brought into the marriage with you remain your own separate property, the separate nature of these assets can be breached by commingling their finances, by treating them like marital property, or by simply failing to keep them separate from marital assets during the marriage.
To confuse things even further, some assets are both separate and marital. For example, if your spouse came into the marriage with a retirement account, the value of the account at that time is separate. The amount that the account grows in value during your marriage, however, is a marital asset that must be included in the division of your marital property.
The most important takeaway here is that it’s in your best interest to pay very close attention to the division of marital property in your divorce, and a formidable Round Rock property division attorney can help you with that.
Listing Everything Is an Important Early Step
While you and your spouse may both agree that certain assets belong to one of you alone, you shouldn’t get bogged down in this kind of thinking in your divorce. You’re far better off assuming that everything – other than those properties that you can prove belong to you alone – is marital property.
In fact, that is the presumption that the State of Texas begins with, and in order to identify an asset as separate, the spouse who claims it is called upon to demonstrate its separate nature.
You are entitled to your fair share of all marital assets, and the only way to accurately assess what you’re working with is to create a list of everything you own. You can sort out values and ownership as you proceed.
If your divorce involves high assets, business ownership, or joint holdings – or if there is any other complicating factor involved – you’ll likely need to turn to professional forensic accounting to ensure you have a clear understanding of the marital estate. Professional valuations will probably also need to play a role.
Valuing Your Assets
Putting a number on high-value assets isn’t as straightforward as many people think. In fact, if your divorce involves a business, property, or anything of considerable value, you’ll likely need to obtain a valuation, and doing so can be complicated in and of itself. It’s not unusual for each spouse to have a valuation performed that isn’t even in the same ballpark as the other’s.
If your spouse is more directly involved with the high-value asset or is more directly involved in your marital finances overall, it can add an additional layer of complication to your case, and they may have an unfair advantage in terms of assigning values to your marital property.
Your dedicated Round Rock property division attorney, however, has the know-how, legal insight, and resources to help ensure that the assets you share ownership in with your spouse have fair values attached.
Recognize that Fair Doesn’t Necessarily Mean Equal
The State of Texas calls for a just and right division of property, which means fair in relation to factors like the following:
The length of your marriage, the size of your marital estate, and the size of your and your spouse’s separate estates
Your earning potential in relation to your divorcing spouse’s
Your age and overall mental and physical health, as well as your spouse’s age and overall mental and physical health
Any disparity in the incomes that you and your spouse earn
The contributions each of you made to the marriage, including in the form of homemaking and caring for your shared children
Any fraud on the community estate, such as by spending down, hiding, giving away, or otherwise dissipating marital assets
The role that fault may have played in the breakdown of your marriage, such as if your spouse used marital funds to bankroll an affair
Whether alimony is a term in your divorce
The tax implications of the proposed property division
Any additional factors that the court considers relevant to the case at hand
When there are reasonable grounds for doing so, Texas courts can award a spouse more than 50 percent of the marital assets. It’s shortsighted to assume that you’re entitled to exactly half when you may be entitled to more, and your seasoned property division attorney will leave no stone unturned in their focused pursuit of a property division that upholds your rights.
Identify Your Priorities
It generally doesn’t make financial sense to liquidate everything in order to divide it evenly between spouses in a divorce, which makes it a good idea to identify your priorities in relation to property division early on.
For example, if your goal is becoming the primary custodial parent, remaining in the family home could be an important part of this. Your priorities will be unique to you, but you should carefully consider them as you negotiate the division of marital property in your case.
Your knowledgeable Round Rock property division attorney will not only help you identify your priorities but will also help you strategize an effective path forward. If the asset in question is a marital asset, it’s owned by both of you, and there are several basic scenarios that could help you make your priorities a reality.
Let’s go back to the family home by way of example and consider the following:
You could offset your spouse’s ownership in the home by allowing them to take a proportionately larger share of the remaining marital assets – if your estate is large enough to manage this.
You could obtain a loan of your own to buy out your spouse’s share in the home outright.
You could buy out your spouse’s ownership in the home over time.
You and your spouse could continue to own the home together until your children are launched, at which point you can negotiate the next steps regarding the sale of the home or regarding one of you purchasing it from the other.
When it comes to property division, strategizing according to your priorities and preferences can pay off, while adopting a take-whatever-you-get attitude won’t serve you well.
The Court’s Version of Fair May Not Align with Your Own
The court is required by law to divide marital property between spouses fairly upon divorce, but the court’s version of fair and your own may be very far apart.
The bottom line is that you’re all too familiar with the circumstances of your marriage and divorce, and the judge handling your case – if it goes to court – knows only the basics that they’ve managed to familiarize themself with via court documents.
Going to court can lead to surprises that neither you nor your divorcing spouse consider especially advantageous, which makes putting your shoulder into negotiations an excellent plan.
While the judge is duty bound to effect a fair division of property in your case, going to court should be considered a last resort – to be turned to only after you and your soon-to-be ex have exhausted your ability to negotiate terms.
Ultimately, most adults prefer to make primary financial decisions on their own, which can help motivate both sides to engage in robust negotiations.
You Have Options When It Comes to Negotiations
Just because you and your divorcing spouse don’t magically reach mutually acceptable property division terms doesn’t mean that you won’t get there.
In fact, you don’t even have to be on speaking terms to get the job done. You should begin by hammering out what you can between yourselves and then turn to your respective property division attorneys to engage in skilled professional negotiations on behalf of each of you. If issues remain, mediation is another opportunity to find middle ground.
At mediation, you can expect all the following:
You, your property division attorney, your soon-to-be ex, and theirs will meet with a professional mediator who will serve as a neutral third party.
Mediation is not legally binding unless you and your divorcing spouse both sign off on the terms you come up with, which means that you don’t have to worry about totally unacceptable terms being forced upon you.
The mediation process is much more casual and relaxed than going to court would be, but it follows a prescribed routine.
The mediator will communicate with you and your spouse, offering each of you the chance to build on the compromises you’re able to reach.
Many couples see mediation as the last stop before court, and as a result, they tend to give it their all. With your savvy property division attorney in your corner, you won’t have to worry about accepting terms that aren’t in your best interest, and if a settlement is reached, you can walk away with the peace of mind that comes from knowing your financial rights are protected.
Finally, it’s important to note that, even if your case does head to court, you can settle your property division terms with your spouse up until the time that the judge rules on the matter. And as that time approaches, your divorcing spouse may become more amenable to negotiating terms and settling the matter between yourselves.
It’s Time to Consult with an Experienced Round Rock Divorce Attorney
The division of your marital property in divorce is important to your financial future, and while you may be entitled to more than you realize, you’ll need to fiercely advocate for your financial rights to make this a reality.
Brett Pritchard at The Law Office of Brett H. Pritchard is a determined Round Rock divorce attorney with a long and impressive track record of successfully protecting his clients’ financial rights. He welcomes the opportunity to help you, too.
Our experienced legal team will leave no stone unturned in our efforts to guide your case toward an advantageous resolution, so please don’t put off contacting or calling us at 254-781-4222 to schedule a free consultation and learn more about how we can help you today.