The Woodlands Divorce Attorney, Conroe Divorce Attorney » Property

Why You Won’t Get 50% of the Community Property

Rich Shea — Sat, 26 Jun 2010 22:30:40 +0000

Many people believe property is divided in half as a result of divorce. It certainly sounds reasonable on many levels. Equal division of property is the standard in some other states, but not in Texas. You can end up with a lot more, or a lot less, than 50% of the community property so you better understand the legal standard the judge is going to use.

It may not mean much to you right now, but if you have significant property to divide in your Woodlands Divorce case then the words “just and right” may end up haunting you if you are not prepared. “Just and Right” is the legal standard used to divide property in a Woodlands Divorce; not “equal”, “50/50” or anything like that. The magic words the judge will use to justify whatever decision he or she makes concerning property division is “just and right.” So, what does it mean?

Nobody really knows what “just and right” means. It is a moving target. The legislature put those words into the statute but never bothered to define them. Over the years countless judges have made rulings on what they interpret to be “just and right” in the case before them and that is what your Woodlands Divorce Attorney will rely on to present your case.

Be Prepared

Don’t risk losing a large portion of your property by not being prepared for your Woodlands Divorce. Attorney Richard L. Shea of The Shea Law Firm can represent you and help protect you from losing everything. Call (832) 426-3913 today.

About The Author

The Woodlands Divorce Resource is here to help you with your divorce, child custody, or other family law issue in Montgomery County or Harris County. Many of our visitors come from the areas of The Woodlands, Conroe, Oak Ridge North, Cut and Shoot, and other communities in the Montgomery County area or Houston and North Harris County. If you need legal assistance with your family law issue speak with a divorce lawyer in The Woodlands, TX today and protect your rights. Contact The Shea Law Firm at (832) 426-3913.

The Deadline for Enforcing Tangible Property Division

Rich Shea — Tue, 16 Mar 2010 09:58:00 +0000

Deadlines are very important in the legal field. Simply missing a deadline can destroy your case even if you should win on all of the substantive issues. One of the most important deadlines I encounter as a Woodlands Divorce Attorney is the statute of limitations to enforce a division of property contained in a divorce decree.

It happens all too often that after a divorce is finalized by the parties reaching an agreement on paper or a judge issuing an order that one party drags their feet in dividing or turning over property. What can you do? Enforce your rights before you lose them.

The Family Code provides that a lawsuit to enforce the division of tangible personal property in existence at the time of the decree of divorce or annulment must be filed before the second anniversary of the date the decree was signed or becomes final after appeal, whichever date is later, or the suit is barred.

That is it, if your lawsuit falls within this section and you file it too late you may lose your case even if your ex-spouse is in clear violation of the decree. This specific statue of limitations for enforcing divorce decrees only applies to dividing tangible personal property. There are other rules that apply to lawsuits not concerning tangible personal property. Speak with a Woodlands Divorce Lawyer today if you need help resolving an property division issue with your divorce decree.

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How Much Alimony for How Long?

Rich Shea — Tue, 16 Feb 2010 14:39:09 +0000

Last time we reviewed the basic criteria for you or your ex-spouse to pursue a spousal maintenance or alimony claim in your Woodlands Divorce. If you or your spouse does meet the threshold criteria to qualify for spousal maintenance in your divorce case some important questions remain. How much alimony will you pay or receive and for how long will the payments last? Your Woodlands Divorce Attorney can help you answer these questions.

How Much Spousal Maintenance?

The standard the court uses in setting spousal maintenance is to provide for the minimum reasonable needs of the spouse eligible for alimony, considering employment or property received in the divorce or otherwise owned by that spouse that contributes to the minimum reasonable needs of him or her.

There is a limit on how much spousal maintenance can be awarded in a Woodlands divorce case. The monthly limit is the lesser of

20 percent of the spouse’s average monthly gross income; or
$2,500;

Department of Veterans Affairs service-connected disability compensation, social security benefits and disability benefits, and workers’ compensation benefits are excluded from spousal maintenance.

How Long Can Spousal Maintenance Last?

Spousal maintenance is temporary and does not last forever. A court:

may not order maintenance that remains in effect for more than three years after the date of the order; and
shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to meet the spouse’s minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill, unless the ability of the spouse to provide for the spouse’s minimum reasonable needs through employment is substantially or totally diminished because of: (A) physical or mental disability; (B) duties as the custodian of an infant or young child; or (C) another compelling impediment to gainful employment.

When Does it End?

Spousal maintenance payments can end early if certain conditions arise. These conditions are:

the death of either party or on the remarriage of the person awarded maintenance payments.
After a hearing, the court shall terminate the maintenance order if the obligee cohabits with another person in a permanent place of abode on a continuing, conjugal basis.

Speak with a Woodlands Divorce Attorney today if you need help resolving an alimony issue with your divorce.

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The Basics of Alimony in The Woodlands

Rich Shea — Fri, 29 Jan 2010 11:16:00 +0000

Alimony and spousal maintenance are still alive. In certain situations spousal maintenance is an option and it may be one of the issues you have to discuss with your Woodlands Divorce Attorney. One of those situations is if your marriage lasted more than 10 years either spouse may be eligible for alimony or spousal maintenance.

Alimony is not automatic once your marriage crosses the 10 year mark. There are several additional key criteria that must be established before a judge can order alimony. Specifically, the spouse seeking support must show that he or she lacks sufficient property to provide for his or her minimum reasonable needs and that he or she either:

is unable to support himself or herself after the divorce through appropriate employment because of an incapacitating physical or mental disability,
is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary that the spouse not be employed outside the home, or
clearly lacks earning ability in the labor market to provide for his or her minimum reasonable needs.

Pursuing alimony is an uphill battle. Even if you or your spouse passes the test described above there is a second test. The Texas Code has a statutory presumption against alimony based on a marriage of ten years or longer. In order to rebut this presumption, the requesting spouse must show

he or she has diligently sought suitable employment or
has diligently attempted to develop the necessary skills to become self-supporting during separation and during the pendency of the divorce suit.

The requirement of complying with the diligent job search or skills development is excused if the spouse seeking maintenance is prevented from seeking and holding employment or becoming self-supporting because he or she has an incapacitating physical or mental disability or is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary that the spouse not be employed outside the home.

Speak with a Woodlands Divorce Attorney today if you need help resolving an alimony issue in your Woodlands divorce.

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Spouse Loses $50,000 Home Improvement Claim

Rich Shea — Fri, 06 Nov 2009 14:58:59 +0000

It is very common for a couple to make improvements to their home during the course of their marriage. But what happens when one spouse uses separate property they received as an inheritance to make home improvements? Through careful review of the evidence your Woodlands divorce lawyer can increase your chance of winning or defending a claim for reimbursement as part of your Montgomery County divorce.

Alfred Baker was married in 1984. In 1996 he received an inheritance of $300,000 and placed it in separate accounts, not marital bank accounts. As we’ve discussed earlier, an inheritance received during the course of a marriage is separate property and not community property. With these funds, Alfred spent $104,000 to pay off the mortgage and $50,000 on home improvements. Unfortunately Alfred’s marriage broke down and his wife filed for divorce in 2006.

In divorce court, Alfred’s wife agreed that he spent $104,000 on the mortgage. Her divorce attorney disputed the $50,000 reimbursement for home improvement and the judge was left to decide the issue.

The divorce court judge agreed with Alfred and awarded him a reimbursement claim for the full $154,000. Alfred’s wife was not satisfied and appealed the decision.

The appeals court reversed the $50,000 reimbursement based on insufficient evidence. The court discussed the following legal requirements to uphold Alfred’s claim:

When a party seeks reimbursement for a benefit conferred by his separate estate to the community estate, the party seeking reimbursement must prove the benefit arose from a separate estate by clear and convincing evidence.
When funds from one marital estate are used to make improvements to the property of another marital estate, the proper measure of reimbursement is not the amount paid to make the improvements, but the enhancement value of the receiving estate. Enhancement value is determined by the market value of the property before the improvements were made as compared to the market value of the property after the improvements were made.

Alfred’s only evidence to support his claim was his testimony. His divorce lawyer did not prove to the court’s satisfaction the enhancement value of the improvements. He did not present any receipts or documents showing specific expenditures as well as tracing the funds to the separate account. With such little evidence the court could not support his claim for reimbursement.

If you or your spouse used separate property to benefit the marital estate while you were married speak with a Woodlands Divorce Attorney today to protect your rights.

The Woodlands Divorce Resource is here to help you with your divorce, child custody, or other family law issue in Montgomery County or Harris County. Many of our visitors come from the areas of Conroe, Oak Ridge North, Cut and Shoot, and other communities in the Montgomery County area or Houston and North Harris County. If you need legal assistance with your family law issue speak with a Conroe Divorce Lawyer today.

What is Community Property?

Rich Shea — Thu, 16 Jul 2009 12:22:12 +0000

In the last post I went through the requirements for identifying certain property as “separate property” in your divorce case for Montgomery County or Houston. Here we will review the rules for identifying community property.

Community property is everything acquired during the marriage that is not properly identified as separate property. The Conroe and Houston Divorce Courts must presume that all property acquired during the marriage is community property unless either spouse can prove to the court by clear and convincing evidence that certain items are protected as separate property.

When Does This Presumption End?

The day your divorce decree is entered and final. The community property presumption remains in effect even after you or your spouse file for divorce all the way through the last day in court. Some individuals choose to use a property agreement while their divorce is pending in order to provide some protection from their spouse’s debts or to protect their own earnings. Speak with a Conroe Divorce Attorney today if you need help protecting your property during your divorce.

The Woodlands Divorce Resource is here to help you with your divorce, child custody, or other family law issue in Montgomery County or Harris County. Many of our visitors come from the areas of Conroe, Oak Ridge North, Cut and Shoot, and other communities in the Montgomery County area or Houston. If you need legal assistance with your family law issue speak with a The Woodlands Divorce Attorney today.

What Is Separate Property?

Rich Shea — Wed, 15 Jul 2009 18:54:41 +0000

Texas is a Community Property state. The Montgomery County Divorce Court and the Houston Divorce Court treat separate property and community property differently when it comes to dividing property as part of a divorce proceeding. So what exactly is “separate property?”

Separate property is:

(1) property owned or claimed by a spouse before marriage;

(2) property acquired by the spouse during marriage by gift, devise, or descent; and

(3) recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during marriage.

Why separate property is important.

The local divorce courts have broad discretion to divide community property as the judge sees fit. The judges do not have the same power over a spouse’s separate property. If you own property that fits any of the above descriptions then your Houston Divorce Attorney can help you keep it and protect it from your soon to be ex-spouse.

How to Keep Your Property from Becoming Community Property

Rich Shea — Mon, 25 May 2009 18:41:28 +0000

Division of property is often a significant issue for families going through divorce in The Woodlands or Montgomery County. Each spouse wants to keep or obtain the property they believe they are entitled to. Texas is a community property state; however, it is possible to protect your separate property from becoming community property and being partially awarded to your future ex-spouse.

Any property on hand in a marriage is presumed to be community property. In order to rebut this presumption of community property, your Montgomery County Divorce Attorney must trace the property on hand during the marriage back to property that was separate (i.e. before the marriage) and continue up to the end of the marriage. This means the entire period from when you first obtained the property up to the date the divorce petition was filed. If you are successful, you can keep your separate property from becoming community property. If you fail, the Court may award significantly more of your separate property to your ex-spouse than he or she is entitled to.

How do you stop this from happening? Simply testifying and giving your word that property in question was originally separate and according to your recollection remained separate is almost always not accepted by the Court. To be successful, you must establish the separate nature of the property though clear and convincing evidence showing the time and means by which you originally obtained possession of the property. If you can provide that proof, then you have another hurdle to overcome.

Property in the form of bank accounts, retirement accounts, or investment accounts typically generate interest, dividends, or capital gains. During a Texas marriage, these items are considered community property even if the account creating the interest, dividend, or capital gain is entirely separate property. In order to preserve your original separate property during a divorce in Montgomery County, you must trace every item of income, deposits, and withdrawals for the entire period of the marriage to prove to the Court exactly how much of the account is still your separate property and how much is now community property.

This is your burden to prove. If the Court has any doubt about the exact value of separate property versus community property it can resolve the dispute as it sees fit. Speak with a Montgomery County Divorce Attorney today to help protect your rights and property while going through divorce.

Division of Property

Rich Shea — Fri, 01 May 2009 00:24:41 +0000

Division of the marital property is often a key issue attorneys deal with in divorce cases in The Woodlands. Each party often believes they are entitled to certain property at the conclusion of the divorce, but what does the law provide for how to divide property?

The court issuing an order for divorce in The Woodlands has the broad authority to distribute property in whatever manner it feels is “just and right.” The court is not required to divide property equally between each spouse in a Woodlands divorce case, and it may order an unequal division when a reasonable basis exists for doing so.

Some of the factors the court may consider include:

disparity of incomes or earning capacities,
the spouses’ capacities and abilities,
benefits which the party not at fault would have derived from continuation of the marriage,
business opportunities,
education,
relative physical conditions,
relative financial condition and obligations,
disparity of ages,
size of separate estates, and
the nature of the property.

The court may also consider fault and the conduct of the errant spouse when fault grounds are pled, as well as the wasting of community assets. Speak with a Woodlands Divorce Lawyer to make sure you receive the property you are entitled to in your Woodlands divorce case.