DIVORCE INFORMATION
A courts ultimate responsibility is to divide the property
in a manner that the court deems just and right. The vast
majority of divorce's in Texas are settled between the parties
and never go before a Judge or jury. Of the cases that do
go to trial most of them are tried before a Judge. There are
significant benefits by having your case decided by a Judge,
as opposed to a jury. The biggest advantage is cost. It's
generally significantly less expensive to have a Judge try
your case as opposed to a jury, the difference is so great
that it is almost cost prohibitive to try a case before a
Jury.
Texas
Judge's have broad authority when it comes to dividing property
and rarely will their judgments be overturned on appeal as
long as they use some guiding legal principle in dividing
the property. A common misconception is that the court must
divide the property 50/50. This is not true. As stated before
a court must only divide the property in a just and right
manner. The court will also divide debt that has accumulated
between the parties and incorporate that division into the
property division. Almost without exception the court will
require an Inventory and Appraisement, sometimes called an
"Inventory" that each party will file with the court
prior to trial. Once the inventory is completed and filed,
the next step is to prepare a proposed property division for
the Judge. The court can not divide the property without some
evidence as to the value of the property. Evidence that can
show valuing of property can come from expert testimony, the
parties inventory's, the parties own testimony and financial
statements. When there is a disagreement over the value of
property, generally a court is within its discretion to value
the property somewhere between the parties own valuations.
But a court must value the property based upon some evidence
presented to it, a court can not value property at a value
where there has been no evidence presented to substantiate
that valuation. Parties can testify as to the value of their
own property, even though that party may not qualify as an
expert to value someone else's property, but that party's
testimony must be based on "market value" of the
property and not replacement cost or other intrinsic value.
Parties must demonstrate that they have at least some basis
of knowledge.
CHARACTERIZATION
Possibly
the single biggest determination during a divorce is how to
characterize marital property. There are two general types
of property in Texas. Community property and separate property.
If property is determined to be the separate property of one
spouse, then the Court does not have authority to divest that
party of that property. (But the court can use separate property
as a basis in dividing property). Community property can be
divided by the Court. There is a general rule that property
acquired prior to the marriage, inherited or given to one
spouse during the marriage is the separate property of that
spouse. Generally any property accumulated during the marriage
is considered community property. There is a presumption that
all property owned by a party at the time of divorce is community
property and that a party alleging he or she owns separate
property has the burden to convince a court otherwise.
There
is another avenue for characterizing property as the separate
property of one spouse. Any money that was earned prior to
divorce is separate property. If that same money is used to
purchase property during the marriage then that property that
was purchased with separate property funds is also considered
separate property. As long as the spouse alleging separate
property can trace the money to the property purchased, without
surmise or speculation" then the separate property claim
will hold. "Without surmise of speculation" can
be conceptualized as what most people would call a paper trail.
Our office is
conveniently located in Dallas Texas at:
Law Office of Michael P. Granata
Turley Law Center
6440 North Central Expressway, Suite 450
Dallas Texas 75206
Tele: (214) 977-9050
website: www.dallasdivorcelawyer.com
©
2004 Michael
Granata. All Rights Reserved.
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