Divorces are traumatic for everyone involved. While children and emotions will naturally live in the forefront of your mind, your property isn’t far behind. In fact, a suit for divorce focuses on two things: 1) dissolving the legal formalities of a marriage and 2) dividing marital property. If you have children, custody and support matters will be addressed by an attached Suit Affecting the Parent-Child Relationship (“SAPCR”).
Whether you are the spouse who filed the petition for divorce or the one responding to the petition, it can be tempting to remove marital property from your home and financial accounts after the divorce has been filed. Doing so, however, can be counterproductive and even lead to serious consequences depending on what you remove and when you remove it. It is important that you consult with a knowledgable divorce attorney before taking any action with marital property.
Texas divorce law defines marital property as all the property spouses bring into or acquire during the marriage. Courts presume that any property acquired or created during the marriage is community property, and each spouse has an undivided one-half interest in that marital property. Courts divide community property in a just and right manner when a spouse files for divorce on a no-fault ground like insupportability. When the divorce petition alleges fault-based grounds, such as cruelty or adultery, courts may divide property disproportionately.
For most married couples, their marital home is their most valuable asset. Under certain circumstances (see below), a marital home may be one spouse’s separate property. If the couple purchases the home during their marriage using community property funds, the marital home will be community property. That means each spouse owns an undivided one-half interest in the marital home.
You obviously cannot remove a marital home before divorce. But many people considering divorce may have a desire to change the locks on their house and deny the other spouse access to their marital home. Denying your spouse access to the marital home is, from a legal perspective, a tricky thing to do. I definitely recommend consulting a divorce attorney before taking that action. If you change the locks on your house prior to filing for divorce, it is technically not an illegal thing to do. It is, however, an action that will likely lead to conflict, and you do not have a legal way to force your estranged spouse to stay away from your marital home. With most courts in Texas, filing for divorce triggers a set of standing orders, which include provisions that prevent spouses from selling, encumbering, or making any changes to the marital home. If family violence has taken place, you should consult a family law attorney about obtaining a protective order that will legally bar your spouse from the marital home while the protective order remains in effect.
Other Marital Property
Community property comes in many other forms that are considerably easier to remove than a home. Again, before taking any actions, I recommend speaking with a divorce lawyer first. Removing money from bank accounts is one example. Many people may find themselves tempted to transfer money from their joint checking or saving account to a private account. Other times, spouses may decide to secretly open a new bank account and start having their paychecks deposited in that private account prior to filing for divorce.
It is important to remember that most money, not necessarily all, will be characterized as community property, especially money in the form of income from your employer. Any attempt to remove community property funds from bank accounts before filing for divorce is not recommended because 1) it is community property that courts will divide in a just and right manner, and 2) the court may use any sort of bad faith actions as justification to make a disproportionate division of property in your estranged spouse’s favor.
Separate property does not owe its existence to the marriage. It is acquired or created apart from the marriage and is owned individually by each spouse. Texas divorce law prohibits courts from divesting your of your separate property. For more detailed information about separate property, click here to read more.
Property owned or claimed by either spouse before getting married is separate property.
A gift is a voluntary transfer of property to another. Gifts are separate property regardless whether the gift comes from a third-party or your spouse. Any money or property that arises from a gift from your spouse is also your separate property.
Property acquired by inheritance, whether through a will or a legal process known as intestate succession, is your separate property, and no court can take it away from you.
For example, money from the proceeds of selling premarital assets remains separate property as well. If you and your spouse own separate homes before you get married and you move into your spouse’s home, the money you make from selling your premarital home is your separate property. Technically speaking, you could remove that money from a bank account before filing for divorce and keep it because it is your separate property. In reality, most people wind up co-mingling separate property funds like proceeds from selling a home owned before marriage with community property funds. The divorce process in Texas involves tracing marital property. Tracing can be easy or complicated depending on the extent of the co-mingling. Be careful with removing separate property before filing for divorce in Texas. Once you can prove by clear and convincing evidence that a piece of marital property should be characterized as your separate property, no court can divest you of your ownership. Proving so can sometimes be difficult. Therefore I recommend consulting with a divorce attorney before making any decisions about removing marital property before divorce.
Texas Divorce Law
The divorce process in Texas uses many rules and statutes to govern the division of marital property owned before divorce. The good thing is that, however, spouses have the ability to agree on a property division outside of the courtroom. Courts in Collin and Denton County use a set of orders to help facilitate an agreed division of property.
When a spouse files a petition for divorce, most counties in Texas require the filing spouse to attach the local standing orders to the petition when it is served to their estranged spouse. The standing orders include a list of prohibitions designed to maintain the status quo as the parties embark on getting divorced. Click here for an example of the standing orders used by Collin County judges. The standing orders concerning marital property will, among other things, prohibit either spouse from selling or encumbering real property, closing or opening bank or credit accounts, liquidating retirement plans, or spending money in excess if their normal life expenses and legal fees. The point of standing orders is to in essence freeze marital assets so that the spouses can negotiate a just and right property division without a judge having to make the division for them.
Temporary Orders Hearing
After the spouses have filed their petition and response, the discovery process begins through what are called initial disclosures. Initial disclosures make sure both parties know about all marital property owned, where those assets can be found, insurance policies, and childcare provisions. If the spouses need the court to order additional conditions for the parties to abide by, which are not included in the standing orders, while the divorce is pending, the spouses will have a temporary orders hearing. At the temporary orders hearing, both sides will have a time-limited opportunity to explain their needs to the court and request relief. Those forms of relief include, but are not limited to, child support, spousal maintenance, attorney fees, possession and use of the marital home or other marital property, and a requirement to attend mediation. At the conclusion of the hearing, the judge will issue additional orders that both parties must abide by until the divorce is finalized.
Divorce Property Settlement
Texas divorce law encourages spouses to reach a settlement regarding property division. Attorneys for both spouses can negotiate. The spouses can reach an agreement on their own. If no agreement is reached, the judge will determine a just and right division of marital property owned before the divorce. Before that happens, pretty much all courts will order a couple to attend mediation.
The mediation process involves a professional mediator who helps the parties reach an agreement on all issues in a divorce. These days many mediations take place via Zoom. In the pre-pandemic days, mediations involve the spouses and their attorneys sitting in separate rooms. A mediator bounces back and forth between rooms, having confidential conversations with the parties. The mediator works to understand each spouse’s underlying interests. Mediators combine their assessments with their knowledge of what a likely outcome would be if the parties went to trial. Then the mediator facilitates the spouses coming to an agreement. The end result is a document known as a mediated settlement agreement (“MSA”). Once both parties sign the the MSA, it becomes a legally binding and enforceable document.
Texas Divorce Decree
The divorce decree is the court’s final order laying out all the terms, agreed to or not, that govern the parties actions after the divorce. It brings an end to the divorce suit as well as the temporary and standing orders. If the parties have signed a mediated settlement agreement, the MSA will become part of the final divorce decree.
Getting a Divorce in Texas?
We understand that the divorce process is stressful and that one of the more stressful aspects is dividing property. You may be able to remove certain forms of marital property before divorce. But it is wise to talk to a divorce lawyer first. Call our marital property experts who can guide you through this challenging time. Schedule your consultation today.