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Tessmer Tips / 18.09.2015

Texas law requires that division of property must be equitable under the circumstances.  There are many things the court considers in determining what is “equitable”, including fault in the breakup of the marriage, the difference in earning potential between the spouses, which spouse has custody of the children, and more.  An equitable split does not mean that the division of property will be 50/50, and a court is never allowed to award one spouse’s separate property to the other spouse.   A couple can name specific property as “community” or “separate” themselves in two ways.  First, before marrying, they can execute a...

Tessmer Tips / 17.09.2015

In the case of splitting debts in a divorce, the key principle to remember is that any agreement reached involving the assignment of a debt is binding between the spouses, but generally does not extend to creditors. A proper divorce settlement will take several factors into account, such as when the debt was acquired, the names on the debt account and how ownership of the asset associated with the debt – for example, a vehicle – is structured. In general, if the credit of both spouses was used to acquire the debt, or both spouses are named on the credit...

Tessmer Tips / 16.09.2015

A business or professional practice can also be community property and must also be considered in the division of property. Probably the most difficult aspect of determining the value of a business or professional practice is the valuing of “goodwill”.  Goodwill is the intangible value that most businesses have based on their name or reputation.  Even a business that cannot be sold has a goodwill value, which must be ascertained when the couple divorces.  Again, having a qualified Family Law attorney on your side in a case like this is crucial, because he will bring in a CPA or business...

Tessmer Tips / 15.09.2015

Community property does not just include things like real estate, household belongings, and vehicles.  It also includes intangible property such as income, dividends, benefits and debts.  All community property must be divided when the marriage ends, and all of the debts as well.   In some cases, when a court awards a portion of one spouse’s retirement benefits to the other spouse, a Qualified Domestic Relations Order (QDRO) must be prepared to be sent to the employer, who will be ordered to distribute benefits to each spouse in accordance with the court’s order.  A QDRO is not a “google and do-it-yourself” document. ...

Tessmer Tips / 14.09.2015

Texas law defines community property as all of the property acquired by either spouse during a marriage, except separate property.  Separate property is anything one spouse owned prior to the marriage, property inherited by only one spouse, property received as a gift by only one spouse and recoveries for personal injuries suffered by only one spouse – except for the portion of the award intended to compensate for lost earnings during the marriage.   All property is presumed to be community property, unless and until the party claiming it is separate can prove so by a preponderance of the evidence.  What sort...

Tessmer Tips / 13.09.2015

In the Texas family court system, there are two kinds of property to be considered in a divorce: separate property and community property.  Separate property is solely owned by one spouse.  Community property is owned in equal shares by both spouses.  All property acquired during a marriage by either spouse is presumed to be community property.  A spouse that claims a particular property is separate must prove sole ownership.   The concept of separate and community property comes from the law of Castile and has been maintained in Texas since Spanish rule. In the early days, a wife could have separate property,...