Jeff Landers, the author of the new book, Divorce: Think Financially, Not Emotionally – What Women Need To Know About Securing Their Financial Future Before, During, And After Divorce, wrote an interesting article for Forbes.com regarding asset division during divorce. 

The focus of the article centered on women preparing themselves and their finances during the divorce process and to become educated on what assets they are entitled to at the conclusion of the divorce.  The biggest mistake I see either spouse make during the divorce process, not necessarily just women, is to rely upon the representations made by the other spouse when it comes to what a person is entitled to when dividing property.

Texas is a community property state.  This means that everything a person owns at the time of divorce is presumed to be community property and is thus divisible by a Court.  However, if a person can prove that an asset is their separate property, the Court cannot divide that asset and will award it to the person whose property is characterized as separate.  A piece of property can be separate property in Texas if it was 1) owned prior to marriage 2) inherited either prior to or during the marriage 3) was gifted to a person during the marriage or 4) is a personal injury award for pain and suffering.  It is important that you consider these factors when you are meeting with your attorney to discuss your options and how you are going to prove an asset is your separate property. 

Many types of assets can be what are called “mixed character assets” meaning that the asset can be made up of both community and separate property.  The most common example of this type of asset is a stock option.  For instance, a stock option can be awarded to a spouse by their employer during the marriage but the stock option will not fully vest until after the divorce.  The stock option has both a community property and separate property aspect.  The employee’s continued work after divorce is required in order for the option to vest and this continued work after divorce is considered the spouse’s separate property.  Therefore, the community property portion of the stock option needs to be assigned and then divided at the time of divorce.

Education and preparation is necessary when preparing for and going through the divorce action.  Your divorce attorney is your guide and advisor during this process.  However, the more you know, the more successful of an outcome you will have.

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.