Many times when I first meet with divorce clients, I am asked “Is this a fair way to divide our property?” The new client then presents me with some “division” that they and their soon to be ex-spouse have drawn up. My answer is always the same … “I don’t know.”
A fair division of property requires some things:
- First, you have to know what property is to be divided.
- Next, you have to know the nature of the property. Is it separate property, community property or what?
- Third, you have to value the property to be divided. How many apples is one orange worth?
- Lastly … you have to know what a “fair share” would be. Is it 50%? 55% because one spouse has a better job? Or what???
One of the most important things that needs to be done in a divorce is clearly identifying all the property and debt, then dividing it appropriately. You may not have a lot of money and assets to be divided but it is all you have. A restart of life after divorce takes many things. One of those things is money.
Experienced family lawyers in Texas, use a four step process in developing a property division.
- First … you must inventory the property and debt.
- Everything owned by the parties and all debt of the parties must be inventoried. No matter when you got it … no matter how you got it … just inventory it.
- Do not make any prejudgments about who will get what. I cannot tell you how many times I hear … “that is his … it belonged to his grandma.” It doesn’t matter everything must be inventoried and divided.
- If you fail to take something into account it may come back later to haunt you. I once talked to a fellow who did a “do it yourself divorce” and didn’t list his oil wells because they were “his.” He inherited them. Well that may have been true, but 90 days after the divorce was final, the unlisted oil wells were characterized by the Court as undivided community property and split 50/50 between him and his very happy ex-wife. The fellow saved about $3,500 on attorney fees with a “do it yourself” divorce but lost about $300,000 in oil wells.
- Second … you must characterize each item of property and debt.
- Onced you have a list of property and debt you have to characterize it. Is the item “separate property” or community property? Sometimes this can be a complex analysis. You need an experienced lawyer for this. Don’t do this yourself.
- Third … you must value each item of property and debt.
- What is the value of each item? Approaches to determine the value of things range from looking the value up in the “blue book” to hiring a property or business appraiser.
- Sometimes the parties will value the item differently. An item may be worth $40,000 to the wife and only $30,000 to the husband. This happens all the time. In such a case the wife can have it for $40,000 and the husband will take $40,000 of something else.
- Last … you must divide the property and debt with a target percentage in mind. This is often done using a spreadsheet analysis. What is a fair percentage? Well, that depends. Maybe the wife has a better job than the husband and it makes sense to give him a bit more property. Maybe 50/50 is a good split. The Texas Courts usually start at about 50/50 and vary only slightly absent seriously bad facts.
If you are thinking about dividing property yourself … think again! You need an experienced family law attorney to help. Property division in divorce is too difficult for amateurs. You need expert advice.