Everyone wants it, and everyone believes they will get it; but rarely does it ever feel like it happens – a fair divorce. Fair is the “F” Word in divorce. Whether you are the one initiating the divorce process or are the one who cannot believe it is happening, in the end, you just want what is fair. All my clients say this to me and they all share this goal. Yet, every time, in every case, and with every client, I still must ask, “What is fair?” Without fail, clients respond with some form of, “Well, that is what you should tell me!” My response: There is no fair in family law. In family law and especially with divorce, there is (almost) literally and figuratively “no fair.” The Texas Family Code, which is what guides all divorces and custody disputes in Texas, contains thousands of words, but I’d guess that less than 15 of them are the word fair. Fair simply does not exist in divorce. So, if it’s not fairness, what does happen in divorce? If you strip away the emotion, the logistics, and the legalese, divorce in Texas is simply a division of property accumulated during the marriage. If you have children, divorce will also result in a parenting plan. Divorce is NOT necessarily a determination of what is equitable for each party. The “F” word often is the reason why the divorce process is so prolonged and costly. The best thing you can do in divorce is forget about fair. Your version of what is equitable is most certainly the opposite of your spouse’s version, the Judge’s version, and the law’s version. If you are dead set on the divorce process being fair, then you are setting yourself up for disappointment. Ultimately, your momentum will be disrupted, the settlement process will be slowed, and you may be quite disillusioned with the results if you appear before a Judge. So, do not use the “F” Word in divorce. Forget about fair. Property Division In divorce, a fair property division is what is considered equitable and based in community property laws. In Texas, we must first determine what property comprises the marital estate. In other words, what do you own? What does your spouse own? And what do you own together? Combined, that is what makes up the marital estate. Once the marital estate is identified, the law assumes that all the property within the estate is community property (regardless of whose name is on what). Community property broadly includes all property that was acquired during the marriage, except for each spouse’s separate property. Only community property can be divided in divorce. The Judge in your case can confirm what is considered separate property; this type of property cannot be awarded to your spouse. Therefore, if you believe the marital estate is comprised of your separate property, it is important you inform your attorney and that you can prove what is your separate property and how it is your separate property. This includes anything owned before marriage; and anything gifted and/or inherited, and damages for personal injuries sustained during the marriage (except for loss of earning capacity). For example, if you and your spouse live in a house that you owned before marriage, that is most likely your separate property; but, you must prove it. There are many ways to confirm separate property and some are better than others. To complicate matters further, in some instances, marital property can be both community and separate. Custody In divorce, a fair parenting plan is what is in the children’s best interests (and not necessarily what is convenient or fair to the parents). The nuances of what we call “the best interest” standard are vast. The most common factors considered include the following: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 54 S.W.2d 367 (Tex. 1976). Overall, whatever parenting plan results in your divorce, it will be aimed at your children’s best interests, but not necessarily what is fair to you or your spouse. In divorce, as with life, nothing is fair. Contact the Law Office of Natalie Gregg at 972-829-3923 to schedule a consultation with me to discuss the “F” Word in divorce, including community property, how to prove separate property, and the best interests of your children.
by Natalie Gregg | Nov 1, 2018 | Family Law