Fighting over ice cream; is it worth fighting over certain property during a divorce?

What is Community Property in Texas?

Many people are anxious to know how much marital property they are going to be able to walk away with after a Texas divorce.  As background, everything acquired during marriage is community property; regardless of whose name is on the item in question.  What that means is that the item belongs one hundred percent to you and one hundred percent to your spouse.  A court will seek to make a just and right division, how a court divides property is the subject of a separate article that can be found here: "Dividing Property in a Texas Divorce, Is it Just and Right?".   What I want to address is the benefit or harm that could be caused in excessively fighting over certain property in a divorce.  

The question here is whether or not it is worth fighting over items such as that comfy beige couch in the guest bedroom or the 70 inch high definition TV over the fireplace?  The answer is that it depends. Everything in the community estate is something that can potentially be fought over.  Including that delicious ice cream in the freezer, as the title suggests.  If the property was bought during marriage it is community property and a part of the marital estate.  Let's think about the ice cream again for a moment, imagine two people fighting over who is going to get the ice cream (outside of  the divorce context).  They fight, they yell, they scream, but after it's all said and done, if nobody gives in, the ice cream has melted and all that is left is a sticky mess.  Nobody gets any satisfaction.  Was it worth it, I don't think so.  So Let's apply that idea to a your potential Texas divorce.  

As I stated before, everything that is acquired during marriage is one hundred percent the property of you and your spouse, so almost everything that is spent on litigation comes out of the same pot so to speak.  When you decide to have your attorney call the opposing counsel to argue and fight about who is going to get the yard tools or who gets that old picture of Elvis you should keep in mind that the fees that you are going to be paying to litigate and argue over small items are going to add up, especially if you set court hearings to fight over small items.  Many times the value of the item in question is far outweighed by the amount of money that came out of the community estate to win it.  In other words, you are depleting the community estate (letting the ice cream melt) by fighting over small items that are easily replaced.  So keep an open mind during your divorce and don't let animosity and a desire to punish the other spouse cause you to waste away the community estate where no-one, including yourself, walks away satisfied.    

Some things are worth fighting over, your spouse shouldn't be able to take certain things from you and sometimes 50/50 just isn't fair.

The foregoing in the previous section being said, some things are definitely worth fighting for. There are many instances where one spouse claims that something is community property and subject to division during a Texas divorce when it is certainly not.  Sometimes they know they are making a baseless claim and sometimes they don't.  Regardless, anything that is not community property is separate property.  The presumption is that everything is community property unless proven by clear and convincing evidence otherwise.  Separate property is anything that was acquired by gift, devise, or prior to marriage.  Certain personal injury settlements can also be considered separate property if they are not for lost wages.  If you have an item that is important to you that falls into one of the categories above then it may just be worth fighting over.  The Law Office of Chad Zubi will fight to help you overcome the community property presumption.  

Other than separate property claims there is another situation where fighting over property may be appropriate.  According to the Texas Family Code, a Texas court is required to divide the community estate in a manner that is just and right.  The Family Code doesn't say that the estate is always to be divided equally.  Sometimes a judge will divide property in a disproportionate manner for a variety of different reasons.  One of the reasons for a disproportionate division of the estate is fault in the breakup of the marriage.  Did your spouse commit adultery?  Were they cruel and abusive?  Did they abuse alcohol and drugs?  All of those things and others can lead a judge to believe that a larger share of the community estate should go to one souse over the other. Other factors that could cause a judge to believe one spouse should get more than the other include:  Does one spouse earn far more than the other?  Does one spouse have a much higher level of education than the other causing that more highly educated spouse to have a higher earning capacity after the divorce?  Does one spouse have a disability?  There are several different reasons for a disproportionate share of the marital estate to go to one spouse instead of the other.  A judge could consider: who is going to recover from the divorce the fastest and easiest?  You may have certain reasons why you believe you should get more out of your Texas divorce.  The Law Office of Chad Zubi will fight tooth and nail to get you what you deserve. Whether it is proving an item or items are separate property or showing that you should get more than your spouse.  Call today to schedule a free consultation with Chad Zubi a Houston, Texas divorce and family law attorney.

Tags: Divorce, High Net Worth Divorce, Property Division