Am I guaranteed a 50-50 division in my divorce? If it’s my pension and I’ve earned it, shouldn’t I get to keep it all?
The property division or marital property rules in Texas are pretty complex. We will start with the theory. One way to look at it is that a marriage is like a partnership, that the two of you are pulling together, trying to make your way in the world, and you share the property that either party acquires during the marriage. That’s called community property. If it’s property that’s earned in one party’s name, or the other, that party has the right to control the property. However, in a lot of marriages, that money goes right into a joint account and both spouses may sit down and talk about it before it gets spent.
When divorce comes along, all community property gets divided, whether the property is held in one spouses name or jointly titled. 50-50 is a starting point. The court has got a big job to do when it comes to dividing property, if the court has to do it. That job is to try to hurt the parties as little as possible, try to keep things as close to normal for both parties, try to level the playing field somewhat if one party has a huge earning capacity and the other party is going to take a while to get back into a job market or is injured and disabled and needs some help. There are provisions for support under Texas law, but they are very limited, so the property is the court’s primary tool for helping somebody who’s going to need some extra time to recover after the divorce.
Does it matter who files first?
That’s a big question for most people. The answer is, “Most of the time, no.” “Who files first” comes into play only if you must litigate, and you have to go to trial, and if either party pays a jury fee, you have a jury decide some of the issues. In a jury trial, the person who files first has the right to open and close on final argument. That’s the only reason to try to get to the courthouse before your spouse files. It can feel like a big thing at the end of a long jury trial, but those don’t even happen very often.
There just aren’t that many jury trials in Texas in divorce cases in a year, so that just doesn’t affect most people most of the time. It’s something that the lawyer is going to take into account when you go see them. “Could we want a jury to hear part of the case? Should we try to file first so we have the maximum flexibility with that?”
So a jury trial actually isn’t ideal?
No, because it’s more difficult to predict the outcome. You won’t know what issues may be decided by the jury until close to the trial time. A jury can decide things such as whether an asset is community or separate, or the value of an asset, and some of the children’s issues can be decided by the jury as well. You don’t know the possible make-up of the jury panel until the morning of the trial. You don’t know exactly how witnesses are going to testify and how they’ll come across. It takes longer to try the case and to present the evidence, and it takes a lot more work on the part of the lawyers to prepare. You end up spending a lot more money getting your case tried that way than if you went to the judge for a trial.
Even going to the judge for the trial is going to cost you a lot more than it will if the two of you can sit down and figure out a reasonable answer that is the best possible, under the circumstances, for both of you. Nobody’s going to win 100%; nobody’s going to be happy, but you can try to keep everybody from hurting as much and find a solution that works for both parties.