“I just want what I’m entitled to.” People say this to me often on divorce consults. Often, what they mean is, I don’t want to take my spouse to the cleaners in the divorce. I just want what I have a right to have. You tell me what that is, and that is what I will take.
I actually have to say that I compliment this person for approaching the divorce this way because it is actually quite rebellious to mainstream divorce culture. Divorce culture in the United States is, get em for all they’ve got! Let’s fight it out! See you in court husband or wife!
But, the spouse that calls and says to me, “I just want what I’m entitled to here” is saying that they don’t need to hurt the other spouse to be divorced. They just need to take what is theirs. So, I like this is as a starting point.
What is a person entitled to in a Texas divorce?
Every husband or wife involved in a Texas divorce is entitled to a just and right division of all of the marital assets and liabilities. This answer does nothing for you, right? You want to know whether you are entitled to your house or your retirement. You need straightforward answers.
The law does not provide a cut and dry response. So, we as lawyers tend to make up a starting point of 50/50. We often say, you should think of yourself as entitled to 50% of absolutely everything that you and your spouse gained during the marriage, whether it is in her name or his name, or both.
So if John and Carol and getting divorced, and John wants all of his own retirement, but Carol wants 1/2 of the retirement, the parties do not agree on what is a fair division. They do not agree on what they are entitled to. They may have to hold a bench trial on this issue, and let a judge decide– who will get what.
In order for the Judge to decide on what is fair for John and Carol, the Judge will need details (facts). Why are they getting divorced? If John keeps his retirement, will carol have anything else of similar value? Is Carol at home raising their children? These details are what helps the court know what is a fair and just division.
I think Attorney Bryan Fagan said it well on his blog when he wrote, “You are entitled to anything you can negotiate.”
In an Uncontested Divorce, What Are You Entitled To?
Make a spreadsheet. The spreadsheet will have all of the assets you and your spouse have accumulated during the marriage and still have today. The spreadsheet will also have all of the current liabilities that were incurred during the marriage. Note, this does not include assets that one spouse inherited or owned prior to marriage.
|Asset||Value||Why this Value||to Spouse 1||to Spouse 2|
|2009 Escape||$5,000||kelly blue book||100%|
|Harley||$8,000||kelly blue book||100%|
|Chase ending in 229||$2,300||amt in acct today||100%|
Both spouses should do this, and then see what you disagree on, if anything. When deciding on what things you should get on this spreadsheet, you should continue to keep in mind that it does not matter whose name is on the asset. Both of you own it if it was gained during marriage. So, most likely, both of you should take 50% out of the marital estate. Maybe one takes the house, and the other gets the savings. Work towards that 50% divide.
Now, before settling on this with your spouse, you can think about whether one spouse should take more than 50% here. Maybe one spouse had an affair, or one spouse makes a lot less money than the other. Maybe it would be fair to do a 40/60 divide instead. If there is a factor that really moves you in that direction, try to see if your ex-spouse agrees.
You are entitled to what’s fair. If you approach the division of assets and debts this way, you will likely come up with a good answer as to one possible outcome of the case, whether uncontested or contested.