by Patricia D. Henderson, Esq. and Cicely Nedd-Thomas, Esq.
Before the court can divide community property, the property needs to be identified and valued. Each spouse is qualified to express an opinion as to the value of property. The value to be established at the time of divorce should be the "fair market value."
Often divorcing couples believe each one is entitled to equal shares of the community estate. However, Texas courts award property in a "just and right manner." The courts can use many factors when awarding property such as the following: fault in the break-up of the marriage; child custody; age of the parties; and the needs of the parties, this being the Court's discretion utilizing the "just and right" doctrine.
When real estate is owned outside of Texas, the courts have no authority to divide the property. Unless a Texas court can subject the parties to jurisdiction, the real estate property sometimes will not be divided upon the Final Decree of Divorce.
Another asset which needs to be addressed is life insurance. Term life insurance has no present value: term pays out on the death of the insured. The courts usually award term life insurance to the insured: however, the courts sometimes give the custodial parent of the parties' minor child(ren) the insurance so that the child is financially protected while under the age of 18 years of age. Whole life insurance is another type of life insurance and, unlike term life, has a "cash" value which accumulates during the life of the insured. This cash value is a community property asset. Caution: If, by agreement of the parties, a former spouse is to remain a beneficiary of life insurance, the Final Decree of Divorce should always address this issue.
Frequently worker's compensation benefits can be overlooked if the funds are received after the Final Decree of Divorce. The rule of law is this: the date of the injury-not the date of the award-is the date which determines a property interest for the other spouse. If the injury occurs during the marriage, this loss of earning capacity is community property.
Household furniture and furnishings can be divided by an itemized inventory and by having each party choose the property they wish to have. In most cases the parties can reach an agreement when dividing their assets without any court intervention.
Divorcing couples are entitled to continue health insurance coverage, via "COBRA." Notice must be given within the required time period to the health care provider by the non-employee spouse and failure to pay the health premiums can result in cancellation of the plans.
Retirement plans are under the courts' jurisdiction, and covered in a subsequent article.
Attorney's Note: It is best to consult an attorney prior to asking your spouse for a divorce, so that a clear understanding of your assets can be evaluated by an attorney. Sometimes, a party may realize that they cannot afford a divorce.
|
