Texas law requires trial courts to divide the estate of the parties in a manner that is just and fair having due regard for the rights of each party and any children of the marriage. Tex. Fam. Code Ann. 7.001. A disproportionate division must have a reasonable basis. Smith v. Smith, 143 S.W.3d 206, 214 (Tex. App. – Waco 2004, no pet.). The trial court has broad discretion in determining the disposition of property in a divorce action. If there is some evidence of a substantive and probative character to support the division, the trial court does not abuse its discretion if it orders an unequal division of marital estate. However, the division should not be a punishment for the spouse at fault. There is a difference between making a just and right division of the property with due regard for the children of the marriage and punishing the errant spouse. In general, the trial courts in Texas have perceived this distinction.
Generally, in a fault-based divorce, the court may consider the conduct of the errant spouse in making a disproportionate distribution of the marital estate. Young v. Young, 609 S.W.2d 758, 761-62 (Tex. 1980). This does not mean that fault must be considered.
The Texas Family Code sections 3.02 and 3.07 provide six circumstances when a divorce decree may be granted in favor of one spouse. These include the traditional fault grounds for divorce of cruelty, adultery, and abandonment. These sections were codified by the Legislature into the Family Code along with section 3.01 which provides for “no-fault” divorce based on insupportability because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.
Texas courts have considered the following factors when equitably dividing a community estate:
- fault in breakup of the marriage;
- the benefits that the innocent spouse would have derived had the marriage continued;
- disparity in the spouses’ income and earning capacities;
- each spouse’s business opportunities;
- differences in the spouses’ education;
- physical health and need for future support;
- the relative ages of the parties;
- each spouse’s financial condition and obligations;
- the size of each spouse’s separate estate and any expected inheritance;
- the nature of the spouses’ property;
- the rights of the children of the marriage;
- waste of community assets or constructive fraud against the community;
- gifts by one spouse to the other; and
- tax liabilities.
The court need not divide the community estate equally. Smallwood v. Smallwood, 548 S.W.2d 796, 797 (Tex. Civ. App. – Waco 1977, no writ). The court has a broad discretion in making a just and right division, and absent a clear abuse of discretion, such decision will not be disturbed. Murff v. Murff, S.W.2d 696, 698-99 (Tex. 1981); Boyd v. Boyd, 131 S.W. 3d 605, 610 (Tex. App. – Fort Worth 2005, no pet.)
When there is no evidence or insufficient evidence to support the property division or an award of attorney’s fees, the appellate court must reverse or remand such decision for a new trial. Sadone v. Miller-Sadone, 116 S.W.3d 204, 208 (Tex. App. – El Paso 2003, no pet).
A party who seeks to assert the separate character of property must prove that character by clear and convincing evidence. Clear and convincing evidence is that measure or degree of proof that will produce in the mind of the trier of fact (judge or jury) a firm belief or conviction as to the truth of the allegation.
In a popular decision Phillips v. Phillips, 75 S.W.3d 564 (Tex. App. – Beaumont 2002, no pet.), Chief Justice Walker opined that because legislature has now authorized “no fault” divorce, fault could no longer be considered in dividing community estate. However, In Re Brown, 187 S.W.3d 143, 2006 Tex. App. LEXIS 686 (Tex. App. Waco 2006) states that what is “just and right” in dividing the property should not depend on the ground on which the divorce is granted; the just and right division of property is separate from the dissolution issue. If one spouse’s conduct causes the destruction of the financial benefits of a particular marriage, benefits on which the other spouse relied, a trial court should have discretion to consider that factor in dividing the community estate – regardless of the basis for granting the divorce.
To prove a disproportionate division of assets in a divorce case, counsel must put on clear and convincing evidence. Without such support, there will be no disproportionate division of community estate. The circumstances of each marriage dictate what factors should be considered in the property division upon divorce.
A divorce proceeding is a difficult time for all parties involved. It is scary to be “served” with a petition for divorce. Fear, anxiety, and confusion are just some of the emotions that go through one’s mind when reading and absorbing an official Court document stating that a spouse wishes to end the relationship. Here are a few tips to keep in mind when you are served.
First, it is not the total end of the world. Do not give into immediate impulses and passions or fall prey to threatening or aggressive messages. Remember anything you say or do, especially in messages, texts or emails, may be used against you at Court. Do not give your spouse free arguments for the divorce.
Second, DO NOT use social media to vent frustration or talk about the divorce. Anything you write to third parties on social media may and will be used against you in Court. It may be hard but for your own benefit do not engage in frustrated tirades regarding your spouse on Facebook.
Third, find an experienced attorney, especially if children are involved. Be smart. It is not always prudent to hire a lawyer based on what appears to be the best financial deal possible when your children and possessions are at stake. The old axiom “you get what you pay for” is true when it comes to legal representation.
Fourth, be wary of Pro Se representation. Pro Se means that you have chosen to represent yourself in the divorce case. This may end very badly for you. Many people believe that if they research enough and familiarize themselves with the Texas Family Law Code they just might be able to receive a good outcome and drive up the attorney cost for the other spouse. Attorneys go to school for many years for a reason. The outcomes for Pro Se clients are not usually good and do not be tricked into taking on an inexperienced attorney to save money.
Fifth, save all hateful and scandalous remarks made by your spouse that have been emailed, texted, posted on social media or any other proof that can be saved against your spouse. Delete Nothing! Allow your spouse to dig his/her own hole. All of both spouse’s comments may be used in Court.
Finally, do not listen to your Spouse about any type of perceived legal outcomes. “I talked to a divorce lawyer and he said you better sign this or I will get everything…”. This is common in family law. Do not fall for the trap, seek experienced representation and let the divorce lawyer deal with your spouse or your spouse’s attorney. Do not be tricked into settling or giving up your children or possessions without competent assistance and advice from legal counsel.
Follow this advice and it will greatly help your probabilities with obtaining a favorable and fair outcome in your divorce case.
Nacol Law Firm P.C.
Dallas Divorce Attorneys
Preparing for a Texas Divorce: Assets
Going through a Divorce is painful no matter what the circumstances are. Before you get into the Texas Divorce Process, reduce expense, stress and conflict by making sure you are financially prepared. Planning ahead helps you in making sound decisions, start preparing for post-divorce life, and avoid many post-divorce pitfalls. Below is a list of items you need to gather before counseling with an attorney. Financial Documents are a must to show what your true assets and liabilities are in your marriage.
We have included many assets that you may or may not have. This is only a financial checklist of multiple assets for your review so you will not miss an important asset that needs to be reported.
1. Tax Returns (at least three years) or Tax Liens and all IRS related documents
2. Wills and Trusts with all attachments reflecting corpus and trust holdings
3. Listing of all liabilities (including mortgages, credit card debt, personal loans, automobile loans, etc.):
—Name of entity, address and telephone number
—Property securing payment (if any)
—Most current statements and account status of lenders
4. A Listing of all Real Property, address and location, including (includes time-shares and vacation properties):
–Deeds of Trust
—Notes including equity loans and second liens
—Mortgage Companies and Loan Servicers (Name, Address, Telephone Number, Account —Number, Balance of Note, Monthly Payments)
—Current fair market value
5. Motor Vehicles (including mobile homes, boats, trailers, motorcycles, recreational vehicles; exclude company owned):
—Name on title
—Fair Market Value
—Name of creditor (if any), address and telephone
—Persons listed on debt
—Balance of any loan and monthly payment
—Net Equity in vehicle
6. Cash and accounts with financial institutions (checking, savings, commercial bank accounts, credit union funds, IRA’s, CD’s, 401K’s, pension plans and any other form of retirement accounts):
—Name of institution, address and telephone number
—Amount in institution on date of marriage
—Amount in institution currently
—Names on Account
—Company loans and documents related to benefits
7. A listing of separate property (property owned prior to marriage, family heirlooms, property gifted, inherited property):
—Records that trace your separate property. These assets will remain yours if properly documented
8. Retirement & Pension Benefits:
—Exact name of plan
—Address of plan administrator
—Starting date of contributions
—Amount currently in account
—Balance of any loan against plan
9. Publicly traded stock, bonds and other securities (including securities not in a brokerage, mutual fund, or retirement account):
—Number of shares
—Type of securities
—In possession of
—Name of exchange which listed
—Pledged as collateral?
—Current market value
—If stock (date option granted, number of shares and value per share)
—Stock options plans and related documents
10. Insurance and Annuities Policies and Inventory:
—Name of insurance company
—Type of insurance (whole/term/universal)
—Amount of monthly premiums
—Date of Issue
—Cash surrender value
—Current surrender value
—Other policies and amendments
11. Closely held business interests:
—Name of business
—Type of business
—% of ownership
—Number of shares owned if applicable
–Value of shares
—Balance of accounts receivables
—Cash flow reports
—Balance of liabilities
—List of company assets
—Possible hobbies or side businesses that generate income
12. Mineral Interests (include any property in which you own the mineral estate, separate and apart from the surface estate, such as oil and gas leases; also include royalty interests, working interests, and producing and non-producing oil and gas wells:
—Name of mineral interest
—Type of interest
—County of location
—Name of producer/operator
—Current market value
—needs leases or production documents related to the asset
13. Money owed by spouse (including any expected federal or state income tax refund but not including receivables connected with any business)
14. Household furniture, furnishings and Fixtures
—purchase receipts and documents
15. Electronics and computers including software and hard drive
16. Antiques, artwork and collectibles (including works of art, paintings, tapestry, rugs, crystal, coin or stamp collections) Other large collections need to be appraised! (Guns, quilts, action figures, books)
17. Miscellaneous sporting goods and firearms
18. Jewelry including appraisals
19. Animals and livestock
20. Farming equipment
21. Club Memberships
22. Safe deposit box items
23. Burial plots including documents of ownership
24. Items in any storage facility
25. Travel Awards Benefits (including frequent flyer miles)
Father’s Access and Possession of Their Children: A Father’s Absence can be Disastrous to his Children’s Lives
There is now a discernible shift in the United States concerning Fathers Rights. A new legal awareness in many state family courts is leaning towards both parents need to be involved in raising a normal loving child. Mom and Dad may not be able to live as a couple, but the child deserves to have both parents in his/her life. Many legal professionals in the United States are working on changing old antiquated strict ideas on the parental foundation structure of the family. Ideas on raising children, even in a broken family, need to include both Dad and Mom.
According to the National Center for Fathering, “More than 20 million children live in a home without the physical presence of a father. Millions more have dads who are physically present, but emotionally absent. If it were classified as a disease, fatherlessness would be an epidemic worthy of attention as a national emergency.”
“Psychology Today” researchers have found this statement to be true. The results of father absence in their children’s lives can be disastrous. Specific behavior for many of these children are:
- Children’s diminished self-concept, and compromised physical and emotional security
- Behavioral problems (fatherless children have more difficulties with social adjustment, and are more likely to report problems with friendships, and manifest behavior problems)
- Truancy and poor academic performance (71% of high school dropouts are fatherless; fatherless children have more trouble academically, scoring poorly on tests of reading, mathematics, and thinking skills.
- Delinquency and youth crime, including violent crime (85% of youth in prison have an absent father; fatherless children are more likely to offend and go to jail as adults)
- Promiscuity and teen pregnancy
- Drug and alcohol abuse
- Homelessness (90% of runaway children have an absent father)
- Exploitation, A, and emotional maltreatment
- Physical health problems and Mental health disorders
- Life chances and future relationships
- Mortality (fatherless children are more likely to die as children, and live an average of four years less over the lifespan)
“When fathers are actively involved with their children, children do better, states Dr. Paul Amato, noted parent-child relationship sociologist at Pennsylvania State University. “Research suggests that fathers are very important for a child’s development”. The “Fathers Effect” is the term for the benefits of the paternal presence. These effects are numerous when fathers actively participate in family life. Minimum time must be spent together, but quality of time is more important than quantity of time”.
Fatherhood trends in America are changing! With the increase in the number of mothers who have now entered the job market, more fathers have started taking a more active role in caring for their children as single fathers are significantly growing in numbers. Pew Research has come out with new facts on American Dads and here are their key findings:
- More dads are staying home to care for their children
- 57% of fathers see parenting as central to their identity with 54% find parenting rewarding all the time.
- Work-family balance is a challenge to balance work and family life. 52% of working dads say it is very or somewhat difficult to do so.
- 74% of men face major pressure to support their families financially, while 49% face pressure to be involved parents.
- It has become less common for dads to be the family’s sole breadwinner.
- Fathers are much more involved in childcare. But in caregiving mothers are still view as the primary parent.
- 63% of fathers still feel they spend too little time with their children usually because of work obligations.
In the future it may be possible for 50/50 joint custody and co-parenting with both parents to be the legal presumption and the norm for presumed access and possession of Divorce or Mediation Orders. Divorce is never blameless, but raising a child is where parents must raise above their personal feelings and think of what is best for the child.
Nacol Law Firm P.C.
Fathers Rights Attorneys
Divorce, in many cases, has a life-altering impact on a child’s development and well-being. Given that one out of every two marriages ends in divorce, thousands of children are impacted each year. Divorce places enormous stress on a child trying to adjust to new feelings and rapidly changing situations in their lives. The resulting instability often leads to resentment towards the child’s parents and a difficulty acclimating to all the abrupt and immediate changes in a child’s life.
Children perceive divorce as a very traumatic event and are very concerned about their security. Many children internalize the dissolution and blame themselves for the breakup. They are scared that both parents may leave them.
Some very disturbing research on children and divorce has just been released by the Census Bureau Study, “The Marital Events of Americans: 2009”.
*1.5% of US children live in the home of a parent who divorced in the last year. The average age of the child is 9.8 yrs. old and the male/female ration is 1:1.
*64% of the children were White, non- Hispanic children, with the largest percentage living in the South (41%).
*Children living with a divorced parent are likely to be in a household below the poverty level (28%) and more likely to be living in a rented home (53%).
*Most children live in a mother headed households (73%). Because mothers have lower earning potential in the labor force, the family often lives below the poverty level.
*These children of divorce are often living with their parents’ unmarried partner (13%). Only 5% of the children are living in a household with a married couple.
Children of divorce often suffer from anxiety, depression and reduced self-esteem issues. Robert Hughes, associate professor in the Dept. of Human Development and Family Science, Ohio State University, found that children from divorce are more aggressive and more likely to get in to trouble with school authorities or police during adolescence. Also children from divorce are more vulnerable to becoming a victim of violence or become a perpetrator of violent acts on themselves and or others.
If you are considering divorce, carefully consider the impact on your children. To help children through this difficult time, parents must realize and accept that they are responsible for this situation and that their children often suffer as a result of the parent’s decision.
Parents should be very sensitive to the child’s emotional needs to ensure the best possible adjustment of his or her mental, physical, spiritual well-being towards a healthy, responsible adult. Remember! Your child is the “Innocent Bystander.”
Seek professional help if you child is struggling with the changes in his or her life. Your attorney knows a resource that may be available to address your child’s pressing needs.