Divorce: Steps to Dividing Marital Property
…And How to Prepare The Property Side of your Divorce Case
The process of divorce can be overwhelming enough. But, yet the process of gathering information regarding the assets and liabilities of your marital estate must be completed. Because the Courts are required in the divorce to divide the property and debts between the spouses, understanding the steps your attorney will take to assist you in this process is a critical step to a successful negotiation, amicable resolution, or successful outcome in litigation.
Step One: Discovering and Establishing All of the Property
Whenever a divorce involves property, the first step is to discover and establish what property consists of the community estate and that which is likely part of one or both spouses separate estates.
The most common way to do this is through the process known as discovery. Discovery is the method by which your attorney may “discover” information about your community estate and the parties exchange information. This can take the form of an exchange of bank or credit card statements, payroll records, investment or retirement statements and the like. Or, you may be asked to answer written questions about your case through what are known as interrogatories.
Upon retaining our office, we will provide you with a Client Questionnaire (LINK), which is the first step in our office in beginning this process. You will be asked to completely fill out the questionnaire as it is critical to assisting in making these determinations regarding your community and separate estate.
Regardless of the form of discovery used, the idea is to eventually have the parties exchange what is known as a “Sworn Inventory and Appraisement” (LINK) form. The inventory and appraisement form is a sworn disclosure of the parties of the entire community and separate estates and the values of each, as proposed by the parties. These values can be professionally determined (such as through an appraiser, CPA, or professional business evaluator), agreed to and stipulated by the parties, or determined by the court. Of course, reaching agreement is always the preferred method and saves tremendous amount of money on fees and expenses as most parties do not have the financial resources to hire experts in their case. These divorces are what Mr. Evans commonly refers to in our office as “divorces on a shoestring budget” and there are many methods by which you can accomplish these same results on a limited budget. Be sure and discuss these alternatives with your attorney.
Step Two: “Characterize and Value the Property”
Once the assets and liabilities of the marriage are established, your attorney and our legal staff will begin working with you to “characterize” your property and place value on them. The “character” of the property is no small point, as this determines what power the court may have in dividing a particular asset. The Court can only divide that property which is determined to be community property between the spouses. We once tried a case where the Husband had improperly listed a brokerage account as separate property. At the time of trial, we proved it was subject to the rule that it was presumed community. The account was awarded to the wife and $16,000 was awarded from that account as attorneys fees to Mr. Evans.
Community property is that which the spouses acquire during their marriage other than that which is acquired by gift, devise, or descent or that which they owned prior to the marriage. All property owned or the spouses claim or have an interest in at the time of divorce is presumed to be community property by the Courts and either party can overcome this presumption by offering “clear and convincing” evidence that the property is separate. As a basic rule, the court cannot divide separate property – it can only “confirm” it as separate.
Your attorney will work with you and discuss these issues in detail. Often times this determination is a source of intense litigation and can be quite complex.
Step Three: Determine How the Court Will Divide the Property
After all of the property has been identified, characterized and valued by the Court – the court will be required to make a determination as to how it will divide the community property and confirm the separate property, if any.
In Texas, the Courts have tremendous discretion in dividing the estate of the parties. It is here that the court can take into account many, many factors in making this determination. The general rule is that no spouse is entitled to any certain percentage. Rather, the Courts are required to make what is known as a “just and right” division.
This concept of “just and right” is where spouses have come to know “what’s yours is half mine” in Texas. This is generally the case, as in most cases the Courts seek to divide an estate presumably 50/50. However, the smaller the value of the estate, the more pressure sometimes exists to make a higher division and the opposite is typically the case when spouses have an estate with significant value.
The Court has the power to order assets to be sold, award certain assets to one spouse or the other, or award money judgments in order to “equalize” the division of the marital estate. It is due to this discretion that we often caution clients to “behave” in the process of divorce, as the consequences of not doing so can be punishing.
Step Four: Finalize Decree and Execute Documents to Transfer Interests
Upon reaching an agreement or at the conclusion of a trial, the Court is required to set forth the division of property in an Order of the Court which is known as a Decree of Divorce. This is the Order of the Court which sets “partitions” or sets aside to each spouse that property which the Court has awarded to each. This is a legally binding document and can serve as a means of transferring title, enforcement of the division of the estate in the future, and governs your rights and obligations as spouses after divorce to each other.
Often times when litigation is occurring between spouses, the precise language or the “form” of the decree can ironically be a significant source of contention as well. Just because an agreement was reached or an Ordered rendered by the Court does not mean that the language suggested in the proposed Decree conforms precisely to the agreement or the Order. It is here where crossing the “i’s” and dotting the “t’s” becomes critical and having an attorney with significant drafting experience can make all the difference.
Finally, once the Decree is Drafted and the case has been finalized, your case may require documents to be executed to transfer interests in certain property awarded to a spouse from the Divorce. For example, a special warranty deed to transfer interests of one spouse to the other in real estate, a power of attorney may be required to allow the other party to obtain or acquire a new title to a motor vehicle, transfer stock, or an escrow or utility account.
Once these documents are completed and filed with the appropriate State of County offices, your divorce is complete.
Put the Experience of James W. Evans Law Office To Work for your Divorce Case
No matter how simple or how complex, the Austin divorce attorney at James W. Evans Law Office understands how to assist you through this difficult time. We are experienced in situations involving the most
simple and complex financial and property disputes.
Mr. Evans has been in practice nearly 18 years and has tried over 100 jury trials. In the last 5 years, Mr. Evans has brought this experience to focus entirely on the practice of family law. See our
page of representative cases and outcomes. This June he has applied to become board certified in the practice of family law. Mr. Evans bring significant courtroom experience as well as negotiation
experience to your case.
Our team of Austin divorce attorneys and staff will work endlessly to make sure your rights are protected.
We are compassionate, experienced, and aggressive when your case requires. We offer free consultations. Put the experience of the Austin family law divorce attorneys at James W. Evans Law Office to work for you. To discuss your case, call us at (512) 628-2550 or email Mr. Evans directly at service@evansflg.com.