How property is divided can be very complicated, especially when it comes to the division of assets and real property. Guerra | Days Law Group is here to sift through the mess and help resolve all the issues that arise in your divorce.
How Divorce works in Texas…
Normally, one spouse will initiate the divorce by filing an ‘Original Petition’ for divorce. We will refer to the spouse who files as the ‘Petitioner.’ The spouse who has the divorce papers served onto him/her will be referred to as the ‘Respondent.’ There are certain circumstances in which the both spouses work together in which the ‘Respondent’ can sign a waiver to give up their right to be personally served with the divorce papers.
The majority of the time, spouses will not necessarily work together. You will have one spouse, as the Petitioner, who will file the ‘Original Petition’ with the court. Once filed, the court will issue a citation with the ‘Original Petition’ and have the papers personally served on or delivered to the other spouse, the ‘Respondent.’
When the ‘Petitioner’ files the suit, he/she can request to have a ‘Temporary Restraining Order’ issued by the court which will:
- Requires assets to remain as is before it is to be divided by the court;
- Requires the spouses to behave and be civil towards one another.
Once a ‘Temporary Restraining Order’ is issued, a hearing must be scheduled by the court within fourteen (14) days of the ‘Temporary Restraining Order’ being issued. There is a possibility that the court may elect to alter the ‘Temporary Restraining Order’ into a ‘Temporary Injunction’ against both parties. A ‘Temporary Injunction’ simply prevents either party from altering the status quo throughout the duration of the divorce. You or your spouse will be prevented, by court, from doing certain things, whether it be moving communal assets, selling items, etc., until the divorce proceeding comes to an end.
There will be times when a ‘Temporary Restraining Order’ will not be issued, and at that point, the ‘Respondent’ has twenty (20) days PLUS the following Monday to file what is referred to as an ‘Answer.’ There court may however, consider a ‘Temporary Order’ if filed along with the ‘Original Petition.’ ‘Temporary Orders’ in a divorce proceeding will typically contain: temporary custody, visitation, support for children, temporary use of the property and/or servicing of debt, and temporary support for accruing attorney’s fees.
Normally, spouses will not have all the information they need from each other, and so they must proceed with the next step which is, ‘Discovery.’ ‘Discovery’ will be the process in which spouses will be required to disclose pertinent information and documents. Whether information is pertinent will depend on if that information has a direct affect on the divorce proceeding.
Once discovery has commenced, spouses can discuss possibility of settlement, either through their respective attorneys or via a mediator, which will be explained below. IF both spouses are able to come to an agreement as to how things should be settled. This proposed settlement is referred to as an ‘Agreed Decree of Divorce’ which will outline and explain the terms of the agreement and this decree will be signed by all parties including both spouses and their respective attorneys and the judge overseeing the case.
If, however, the spouses are unable to come to an agreement of all issues, then a trial date will be set. But before trail, spouses are required to attempt to settle their issues through mediation, as mentioned earlier. Mediation is an informal, out-of-court, process which allows the disputing spouses to speak with an objective and neutral third party, the mediator, in order to negotiate and settle the terms of issue.
There will always be instances when meditation will fail and the case will have to go to trial. The trial itself can involve any number of things. During trial, spouses can elect to commence more discovery, question the other spouse or other witnesses on the stand if needed, present evidence to a jury, if a jury trial is elected. A ‘Final Decree of Divorce’ will be drafted by the attorneys to present to the judge for a signature. More specifically, a ‘Final Decree of Divorce’ will have any and all of the court rulings and the trial will resolve all issues pertaining to the divorce, making it binding, from that point onwards, for every member of the party.
How is property divided in Texas?
Texas is a community property state and the most frequently questions asked are: “Which one of us gets to keep the house?” or “I purchased my house before my spouse and I were married, do I get to keep the house?”
In Texas, when married, all property owned and acquired by either spouse during the marriage is considered ‘community property.’ ‘Community property’ means each spouse possesses equal shares in the property, regardless of who it actually belongs to.
The most common types of property divided during a divorce are real property (house), personal property (jewelry), and intangible property (income, dividends).
Real property is the most complex part of a divorce. Luckily our real estate attorneys at Guerra | Days Law group are experts in all matter real estate and we will make this process as simple as we possibly can.
If there is property which either spouse does not consider to be ‘community property,’ he/she will have to prove that that particular property is ‘separate’ by tracking it with “clear and convincing evidence.” The “separate property’ must be property which was acquired by only one spouse either by gift or inheritance.
For example, if a spouse were to have inherited property money from his/her family member and it was kept in a separate bank account, then this can be considered ‘separate property.’
Community property is divided in a “just and right manner,” which usually means a 50-50 split. Other factors can affect the split, such as disproportionate earnings between spouses or even the spouse who is at fault in the marital relationship. But the presumption is always all property either spouse possesses during the marriage as ‘community property.’ Texas defines community property as “any property acquired or earned during the marriage that isn’t separate property.”
Don’t hesitate to contact a divorce attorney from Guerra | Days Law Group. Our firm has the experience and the patience to help you through your most tedious and stressful divorce.