Dallas Divorce Lawyer Blog
How do I prove that certain property in my divorce is separate from the community property?
When the court divides property in Texas there is a presumption that the community owns everything, that is both parties will have a right to it. Anything that you or your spouse has received through gift, devise, or descent is your separate property, and you will need to show this to the court. But, if there is some property that you have used your separate funds to purchase, and is your separate property you will have to prove this to the court through clear and convincing evidence. The Fifth District Dallas Court of Appeals case, Slicker v. Slicker, defines clear and convincing evidence as the “measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” So, you and your lawyer will need to bring in enough evidence and proof that will reasonably convince the judge or the jury the property is in fact your separate property.
How does the court divide community property?
The court will divide the property in a manner that is just and right, taking both parties circumstances into consideration. The Supreme Court of Texas case Murff v. Murff noted that the division need not be equal and established several factors, known as the “Murff Factors” to consider when making the just and right division, such as, the nature of the martial property, the relative earning capacity and business opportunities of the parties, the parties’ relative financial condition and obligations, the parties’ education, the size of the separate estates, the age, health, and physical conditions of the parties, fault in breaking up the marriage, the benefit the innocent spouse would have received had the marriage continued, and the probable need for future support. When dividing your property the court will look to these to make a just and right property division.
What is waste/fraud on the community estate and how is it handled in the divorce?
Waste or fraud is when you or your spouse has purposefully taking funds from the community estate with intent to keep it from your spouse through dishonesty. If your spouse has committed waste and/or fraud on the community, the Texas Family Code in Section 7.009(b)(1) requires for the court to “calculate the value by which the community estate was depleted as a result of the fraud on the community and calculate the amount of the reconstituted estate.” Reconstituted estate is further defined in subsection (a) of 7.009 as “the total value of the community estate that would exist if the actual or constructive fraud on the community had not occurred.” The amount that the community would have had had there been no fraud/waste will then be divided between the parties in a just and right division. The court will have the option to grant any relief necessary to the harmed spouse, subsection (c) explains that the court can grant the wronged spouse an appropriate share of the community estate remaining after the actual or constructive fraud on the community, or can grant a money judgment, or both. It will be up to the court to decide what is just and right.
What is spousal maintenance and how is it determined?
Texas Family Code section 8.051 allows for a court to order spousal maintenance if the party seeking the maintenance meets specific requirements. Spousal maintenance occurs when after the divorce is granted, a spouse is ordered to pay the other spouse a court determined amount of money for a period of time. To qualify for maintenance the marriage must have lasted 10 years or more, the spouse wanting maintenance must lack sufficient property to meet minimum reasonable needs, and lack the ability to earn sufficient income to provide for minimum reasonable needs. The spouse wanting maintenance must also show they have put good effort into finding a job or into developing skills to do so. To determine the amount, and how long the maintenance will need to be paid, the court will use the factors listed in Section 8.052 of the Texas Family Code such as, the ability of the spouse seeking maintenance to provide for his or her own minimum reasonable needs independently, considering the spousal’s financial resources at the time of the divorce, the age, employment history, earning ability, and physical emotional condition of the spouse seeking the maintenance; the duration of the marriage; the availability and feasibility of the education or training necessary to enable the spouse to earn sufficient income; the spouse’s contribution as a homemaker, or to the other spouse’s education, training, or increased earning power; and the property brought to the marriage by either spouse. The court can also consider any fraudulent acts by either spouse when determining the maintenance amount and duration. Each case will be determined on its specific facts and circumstances when calculating maintenance.