How Are Pension Or Retirement Assets Divided In A Divorce?
It is only supposed to be the portions of the retirement, or pensions, or any of those investments that accumulated during the marriage. If you have a pension or a retirement account that has been accruing or investing for twenty years, but you were only married for ten, well the spouse is only entitled to, or is supposed to be entitled to a percentage of the account that accrued during the marriage. This goes for military retirement as well. It is usually very important for the military retirement because those can grow rather large overtime, especially if you are talking about a twenty year plus serviceman. You want to make sure that the spouse is only getting credit in their decree for that portion that you were married to the spouse.
Are There Any Assets That Are Not Subject To A 50/50 Split During Divorce In Texas?
Yes, there are some assets that are not subject to that fifty-fifty split. Any assets such as real property that you walked into the marriage with that clearly did not accumulate or come into possession during the marriage are technically not a part of the community estate. If you owned a house or you owned land, or you owned, I guess maybe even a particular bank account with a specific sum of money that had already accumulated prior to the marriage, then technically those assets are not a part of the community estate and therefore not subject to division at the time of divorce.
However, you need to be careful about co-mingling assets or utilizing community funds to enrich or enhance your own separate property. Because if you do that then you are subjecting those assets to potentially being a part of the division of the community estate at the time of divorce. This is a very technical and complicated area that not every estate that you see ends up dealing with, but it does happen, and it is one of these things that can become very complicated and technical when they do occur.
Are Gifts Given Or Received During The Course Of Marriage Also Subject To A 50/50 Split?
Gifts from one spouse to another in my opinion are still a part of the community estate. You can make arguments either way, but the best practice or rule of thumb is anything that one spouse gave to another during the marriage you need to anticipate is going to be treated as community. But gifts that a spouse receives from outside of the marriage such as a gift from a parent or a grandparent, or some award that was earned by one spouse during the marriage can be treated as separate property, but you run into a situation where you have to be very careful what you do with that money because if you are gifted a sum of money or real property, or some type of asset, you receive it solely or individually outside of the marriage. You then have to maintain the integrity of that separate property because if you co-mingle those funds, then you are again running into the situation where you are running the risk of that award being treated as community property the moment you co-mingle those funds.
Does Change In The Value Of A Property Affect The Division Of Assets In A Divorce?
No, it does not change the character of the property. The more important issue when you are talking about separate property, a gift or inheritance was received from a third party, the important aspect is to insure that that property maintains the integrity, or the characterization of separate property throughout the marriage. It does not matter if it was a mutual fund, a CD or something.
You received some sort of investment vehicle as a gift; let us say from a parent. As long as you continue to treat that as separate property and do not, again, co-mingle those funds with other property, then it does not matter how much it accumulates in value. It is still going to be treated as separate property. But if you do something to change the nature of that gift to where a spouse could consider it as community property, then the spouse could benefit from that property growing in value.
What If I Suspect That My Spouse Is Hiding Or Wasting Assets?
You would like to know, or have a general idea of what they are doing if they are hiding or wasting assets, because once you get into litigation you can request discovery and specifically address those issues in the discovery. You can also subpoena documents. You can also depose the spouse. In depositions, ask very specific questions about funds, assets or anything you think might exist. You can even issue subpoenas during the depositions to compel the court to bring stuff to the deposition for your review. But again, you would hope that you would have at least a general idea of what may or may not be out there that you can go through the discovery process and ask those types of questions.
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