MANAGEMENT OF COMMUNITY PROPERTY

In my last few blogs I’ve been discussing the differences between community property and separate property.  The next question spouses often ask is what control do they have individually over property that they own together with their spouse.   Like most legal question the answer is “it depends”.

Under Texas law there are two types of community property: sole-management community property and joint management community property.  Sole-management community property is property that one spouse has the exclusive right to manage, control, and dispose of without the other spouse’s knowledge or consent.  The limits on a spouse’s use of sole management community property are that the spouse cannot fraudulently dispose of the other spouse’s one-half interest and the spouse owes the other a duty as a fiduciary to manage the property with the utmost good faith and fairness.  Generally, sole-management property is the community property that would have been that spouse’s separate property if it had been acquired while the spouse was single. Some common examples of sole-management community property are wages and employment benefits, revenue from separate property, and some types of damages recovered for personal injury suits.

Joint-management community property is property that both spouses must manage cooperatively with equal management rights.  Generally speaking, joint-management community property requires both spouses to give their consent to any transactions involving the transfer or encumbrance of joint management community property. However, spouses can give one spouse the power to unilaterally dispose of joint-management community property if done by written agreement or granting a power of attorney. Some common examples of joint-management community property are property purchased during the marriage with community property or community credit, community property held in the name of both spouses, and income and debts generated from community property.

If the spouses mix sole-management community property with joint-management community property, by using a common bank account for instance, the property becomes joint-management community property.  If one spouse takes on the role of independently running a piece of joint-management community property, like a community owned business, that property still remains joint-management community property.

While the issue of joint-management versus sole-management community property rarely comes up during a marriage, it can become an important issue if the spouses have separated or are in the process of getting a divorce.  If you are going through a separation or a divorce the status of management of the community property will be important in determining what you can and cannot do with the community property and what resources each spouse will have available to them while the divorce is pending.

 

WHAT IS SEPARATE PROPERTY?

When two people are married all the property the couple owns will be either community property or separate property.  In my last blog I gave an overview of what constitutes community property, so for this blog I wanted to complete the picture and provide some basic information on what is considered separate property.

Generally, speaking separate property is property that is wholly owned by only one member of the marriage.  Separate property can either be property that one spouse owned before they got married or it can be property one spouse received during the marriage by way of gift, devise (by will), or decent (by inheritance without a will).  Property is classified as either separate or community property at the moment it becomes the property of one of the spouses.  This is called the inception of title rule.  This straightforward rule can produce some confusing results.  For instance, income that is earned from a spouse’s separate property, like rental income for a house the spouse owned before marriage, is community property.  This is because that income was acquired by the couple during the marriage and thus meets the law’s definition of community property.

Once a piece of property is classified it will remain either separate or community property until the couple either divides the property through a post-nuptial agreement, a Court divides the property through a divorce, or a spouse makes a gift to the other spouse.  Under Texas law, all the property of both spouses is presumed to be community property.  That means if one spouse owns separate property, that spouse bears the burden of proving that the property is their sole separate property.  Proving that a particular piece of property is one spouse’s separate property often requires clear records for that property that go back to the time the property was acquired.  If you believe you own significant separate property and you are contemplating a divorce, it will be important for you seek the assistance of legal counsel to help you prove that your property is, and more importantly has remained, your separate property.

WHAT IS COMMUNITY PROPERTY?

Texas is known as a “community property” state.  Many people that come into my office and are thinking about divorce, have heard the term community property but don’t know what community property really means.

Generally speaking, community property is property that each member of the marriage owns an undivided interest in.  Both the wife and the husband have an equal ownership interest in a marriage. At the time a divorce is entered, this property must be divided between the parties and becomes each of the parties separate property.  Often times, couples believe that if they have separate bank accounts they still have separate property.  This however, is not the case.  This can be confusing because Texas law allows for a husband and a wife to exercise sole control of community property even though both spouses technically own the property.

Under Texas law, all property acquired during marriage is presumed to be community property.  Separate property is made up of the parties property they owned before the marriage or property they received during the marriage through gift, devise, or decent.  Thus, all property the couple owns is either separate or community property.  Additionally, community property can be solely controlled by either the husband or the wife, but this does not define if it is separate or community property.  What defines the properties statues is how and when the property was acquired.  For example if the husband, while married, takes the wages from his job and deposits them into a bank account solely in his name, that property is subject to his sole control.  However because that property was acquired during marriage and was not acquired by gift, decent, or devise it is considered community property that both the husband and wife hold an undivided ownership interest in. Even though the property came from the husband’s job, and it is kept in a bank account solely in the husband’s name, the property belongs to both the husband and his spouse as community property.

UNDERSTANDING COMMON VISITATION SCHEDULES FOR CHILDREN IN A DIVORCE

Many of my clients’ biggest concerns when contemplating divorce is what access to their children will be after the marriage ends.  The first thing I tell my clients is to not worry: provided there are no issues related to the children’s safety, the State of Texas wants a divorced parent to have enough access and be an involved parent.  If you want to be an involved parent, the law will support you and your ex-spouse, most likely, will not be able to prevent you from seeing your kids.  But how exactly does the law divide up the time with the Children?

In many cases the parties can come to an agreement on a specific schedule that works with their family and circumstances.  Texas Courts generally accept and approve a schedule of visitation that the parents create by agreement.  In cases where the parents cannot agree, the most common visitation schedule for the non-custodial parent is called the Standard Possession Order. It grants the non-custodial parent time with the child every Thursday evening during the school year, and the every first, third, and fifth weekend of each month beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on the following Sunday. In addition to these times, the non-custodial parent also has the children 30 days in the summer, a week during Christmas break, and alternating spring breaks and Thanksgivings.

For non-custodial parents that would like even more time with the children they can request the Court put them on Expanded Standard Possession Schedule. If awarded, the Expanded Standard Possession Schedule, the non custodial parent can elect to keep the children over night on Thursday and their weekend possession can be extended to the time school resumes Monday morning.  Expanded Standard also increases the time available for holidays.

Furthermore, if the non-custodial parent believes that even the Expanded Standard Possession schedule is not enough time with the children, that parent can negotiate an agreement for more time with the other parent or ask the Court for a schedule that divides the time with the children 50/50.  At the end of the day, it is important to understand that when choosing to get a divorce, it does not mean giving up a parents ability to have meaningful time with their children.

Calculating Child Support in Texas

Great Online Tool for Parents with Questions about Child Support

One of the most common issues I am contacted about is child support.  The question I am often asked is  “how much child support  will I have to pay?” or “how much child support will I receive?”.  Generally, speaking the amount of child support a Court will award follows a statutory formula.   The formula is based on the monthly net resources of the parent that will be paying child support,  the number of children that will be subject to the order for child support, and the number of other children the obligor has a duty to support.

The Texas Attorney General’s office has a useful online calculator where you can enter your specific earning information and family situation and it will estimate the amount of the monthly child support obligation.  It is a great tool to see if it might be time to ask for a modification of a current child support order or to have more information if you are thinking about asking for child support.

The Texas Attorney General’s office has a useful online calculator where you can enter your specific earning information and family situation and it will estimate the amount of the monthly child support obligation.  It is a great tool to see if it might be time to ask for a modification of a current child support order or to have more information if you are thinking about asking for child support.

Here is the link:

https://www.texasattorneygeneral.gov/cs/calculator/

 

How much will my divorce cost?

A common question from people considering divorce is how much getting divorce costs. The answer depends on several variables. Aside from attorney’s fees, there are court costs and filing fees to file an initial petition for divorce and other pleadings. Also, there’s a cost for using a process server to give notice to the responding spouse. Other fees may include court-ordered services such as parenting classes, mediator fees, or social-study fees.

Attorney’s fees are usually more than court costs and filing fees. Because most attorneys charge by the hour, the cost of the divorce depends on how much time and work the attorney has to spend on the case. In highly contested and disputed cases, attorney’s fees are typically very high because the attorney has to spend lots of time advocating for the client. On the other hand, if the parties work mainly by agreement with little work required from the attorney, the cost is much lower. Essentially the cost of attorney’s fees for your divorce will depend on how much you and your spouse want to fight with the assistance of legal counsel.

Medical Directives in Texas

A Medical Directive in Texas is a document that helps you communicate your end-of-life wishes while you are still competent and able to make such decisions.  During my practice, many individuals have stated that while they were comfortable making medical decisions for their loved ones under the loved one’s medical power of attorney, they were very thankful that when the time came to make decisions about whether or not to allow their loved one to live the rest of their life with artificial measures, such decision had already been made by their loved one via their Texas Medical Directive document.

When completing a Medical Directive in Texas, you are given certain scenarios wherein you are to decide if you want life sustaining treatment withheld and to be left to die peacefully or if you want life sustaining treatment administered.  The Texas legislature has provided certain definitions of which you need to be aware in order for you to make informed decisions about your end-of-life wishes.  Generally, it is a good idea to speak with an estate planning attorney about such language and definitions before signing such documentation as you want to make sure that your decisions are ones that are based upon your full knowledge and understanding of the medical terms used in such documents.

A Medical Directive in Texas is not only signed by you, but is also required to be notarized and signed before two witnesses that are not in anyway employed or connected to your treating physician or hospital facility.

Having a Medical Directive is not only wise in that you are being able to make sure that your end-of-life wishes are being carried out when you are unable to communicate such wishes yourself, it gives your loved ones peace of mind that they were not the ones that had to make such a gut-wrenching decision on your behalf.