January 19, 2009 by chad
YOU AND THE LAW
(The Stories Men Tell)
A repeating scenario that plays itself out in the offices of lawyers throughout Texas goes something like this:
A woman, distraught over the eminent break-up of her marriage arrives at the offices of her chosen attorney for the initial consultation. Before the attorney has a chance to glean the details of her situation, the woman, hump-shouldered at the conference table, tears welling in her eyes, says, “I don’t know what I’m going to do. My husband has always handled the finances and I know nothing about divorce, very little about what we own or our investments, what’s in our bank accounts or how much money we have. I can’t even afford an attorney.
“He says he can prove I’m a bad Mother and get custody of the kids. He says the business he owns but that we started together is his. He even says he’ll get possession of the house. He’s got a huge retirement account that he says I can’t touch. What am I going to do.”
First, stop listening to your husband! It’s likely that he doesn’t know any more about divorce law and property rights than you. (This may be true of your well-intentioned friends as well.)
Second, do not agree to any settlement without consulting an attorney. Bet your money that he’ll be represented and if your not, you probably fair poorly.
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ext-align: justify;”>Texas is a community property state and often refereed to as an “equitable distribution” state. That’s important for you to remember. The concept of “community property” in Texas was spawned from Spanish Civil Law and continues to this day in Texas as its civil law process. The community property system is driven by both the “operation of law” and case law decisions and does not require voluntary agreement from the spouses. Spouses do not have the option not to be governed by the laws of community property and in Texas the presumption of the community estate is automatic. Although courts have discretion in dividing property in a divorce and may not divide property “equally”, they typically make their decisions equitably along “community property” lines. Married couples may though, during the marriage and by agreement, choose to divide their community property into separate property (this is a topic for another day).
During the marriage, neither the wife nor the husband acquires ownership of community assets through the other. The community interest occurs at the moment assets are acquired and continues so as long as the couple owns the asset. In the event that the legal ownership to an asset is vested solely in the name of one of the spouses, that spouse generally holds the property for the community estate (half for the other spouse), during the term of the marriage. Accordingly, in Texas, the wife and husband share equally in assets acquired during the term of the marriage. (This does not apply to assets owned prior to and brought into the marriage and may be different if assets were acquired while living in another state.)
So how does the woman in our example respond armed with this knowledge?
She smiles and says, “Well, Mr. Man, I happen to know that Texas is a community property state. Half of anything we acquired during our marriage, including our house, our investments, our savings and cash, as well as ‘your business’ may already be mine. Oh, and don’t forget the retirement account too.”
“As for the kids, talk to my attorney.”
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