Christina Jimenez and Joshua Floyd from The Jimenez Law Firm, P.C. discuss that Texas is not a 50/50 community property state. The Attorneys review the Texas Family Code requires a just and right division of community property. Judges may make the decision according to different factors such as bad behavior on one side, or if there are fault grounds (adultery, cruelty, etc.), or if there is disparity in earning capabilities.
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At 0:14 – Today we are going to be talking about community property, separate property, and how a court is going to divide the marital assets. To begin, we’re going to explain the difference between community property and separate property.
At 0:35 – Community property is anything that is owned during the marriage. Everything is considered community property until it is determined that it is separate property. Separate property is anything that you received as a gift or inherited, and anything you owned prior to the marriage. It is important to note that it is all considered to be community property until it has been determined that it is separate property.
At 1:15 – When determining whether something is community property or separate property, you and your lawyer will have to prove through evidence that there are items you owned, inherited, or items that were gifted to you and therefore are separate from the marriage.
At 1:42 – Typically we have a schedule of marital property. This is detailed paperwork we give to clients. The first part is the assessment. It is meant to document everything they own and everything they owe. Then there is the appraisement, and that is to determine what everything is worth. The paralegals create a draft to be brought to the court for the final divorce hearing. Anything that is marked as separate property needs evidence to show that it is not marital property.
At 2:53 – We also like to have a proposed division of property. The proposed division of property shows the clients how they can divide the assets. It is a common misconception that everything will be split 50/50 down the middle. There are instances where it may not make sense to do that such as splitting property. The point of the proposed division is to split the community assets as a whole rather than each item individually.
At 5:53 – I explain to clients that the way to look at the assets is this; if you were to sell the items or the property, what would you make off the sale? Let’s use property as an example. We find out how much money a person would receive with the sale of the property. That is how we define the actual value of the property.
At 06:33 – Typically, the court is going to use the term “just and right division”. That means that the estate is divided according to what the judge thinks is fair based on circumstances. Typically, I see judges start at 50/50 and then they deviate from there based on several factors. Some are listed in the code, but other reasons might be how the client acts in court. The judge has a lot of latitude in dividing property. I have seen a 45/55 split or a 60/40 split, which is usually because of egregious acts on one side of the case.
At 08:17 – And so, it is important to have the proposed division filled out in detail and have it clearly laid out for the judge on why you want to split assets out in a certain manner and therefore it is just and right.
At 08:46 – Now let’s talk about disproportionate share. There are approximately twenty factors the court can consider when dividing real estate and giving a party a disproportionate share. We will cover a few. The first is called fault. Fault is meant to prove fault in breaking up the marriage, meaning one person’s behavior caused the breakup of the marriage. This could be adultery or abuse. So, this means presenting a case to say that the marriage would still be intact if the other party had not acted so egregiously and that the party would still be gaining the benefits of the marriage. Therefore, the party wants a larger amount of the assets to compensate for what they are losing due to the divorce.
At 10:02 – An example of fault is a case I had where the other party was asking for quite a bit more of the assets because of an affair. But we were able to prove that the marriage was falling apart prior to the affair. We had documentation of counseling visits and there were several reported instances where there were a lot of difficult things happening between this couple. It was determined that the relationship had ended prior to the affair. Therefore, it was not my client’s fault the marriage ended. It may not play out like this in every case.
At 11:51 – Just like with other family law cases, outcomes depend on the judge. We advocate that clients find an attorney that is in their county rather than an attorney from another county. The advantage of a local attorney is that they know the judges in that area, and they know what the judges will consider egregious behavior. Some judges may not think that an affair is grounds for a disproportionate share of the estate. You and your attorney need to determine whether bringing up adultery is going to be a persuasive argument for getting more of the estate.
At 12:44 – The next element is the disparity of earnings. The term refers to a large difference in income. So, if the wife is making $500,000 and the husband is making $100,000 then the husband can ask for more of the estate to provide security.
At 13:17 – Now we have wasting community assets. Generally, this means if one spouse is taking a large amount of money and spending it carelessly, and on something that does not benefit the community assets, and therefore preventing the other party from receiving the money in a fair distribution, then that is considered a waste. A client can ask for a disproportionate amount of the assets to offset what should have been distributed and is no longer there.
At 14:05 – There was a case back a few months ago where we were able to get the bank statements and records to show that a large amount of money had been spent on dating sites and pornography sites, hotel expenses, giving cash through Venmo, etc. They spent over $15,000. So, we were able to take assets away from the spouse who was spending money and give them to the other party to offset that loss.
At 15:27 – Now we have the health of the spouses. This is generally for older couples, but anyone can use it. It states that if one party is unable to earn an income due to health issues, they can ask for more assets to support themselves after the marriage has ended.
At 16:08 – It is important that you visit a local attorney who knows the judges and can analyze your case accordingly and give you good legal advice. Even details that seem minor can have a huge impact on how your estate is divided.