Court is just like television.
Reality: If you are prepared, there shouldn’t be any shock and awe moments though you can expect to testify in court. Texas requires “fair notice” in pleadings. As a result, you must properly plead in advance of trial everything you are requesting in terms of relief such as a disproportionate share of the marital estate, a fault ground for divorce, custom possession schedule and/or restrictions on possession.
My spouse knows this asset is my separate property so I don’t need to be worried about it.
Reality: Separate property is not considered in the overall property division. So, for example, if your retirement account before marriage was significant, don’t assume your spouse will concede and admit your spouse will say it’s community property. As community property, they could receive a portion of it as part of the just and right division of the marital estate. As your separate property, the court lacks the authority to award them any of your separate property. It’s your burden to prove each asset that is your separate property by clear and convincing or evidence.
The account is only in my name so it’s mine.
Reality: Texas is a community property state. Everything you and your spouse owns is presumed to be community property subject to division between you and your spouse upon divorce. Community property is basically all assets that are not separate property. Separate property is assets owned prior to the marriage, gifts or inheritance received during the marriage and certain proceeds from a personal injury lawsuit as set forth in Texas Family Code. Even if the account is titled “Jane Smith separate property”, the account is community property until Jane proves by clear and convincing evidence it’s her separate property.
Letters can be used as evidence instead of a person testifying in court.
Reality: A letter can only be used in court as evidence for limited purposes. Most likely, the reason you want to use a letter is “for the truth of the matter asserted”. If so, the statements contained in the letter will not be admissible in court due to hearsay. Furthermore, each party has a fundamental right to be able to cross-examine and ask questions of a witness. So, while letters, which are witness statements, can be useful in other ways, you should plan on your friends, experts, or other witnesses testifying in court.
The outcome of my case will be fair.
Reality: Fair does not determine the outcome of your case. If children are involved, the best interest of the children controls the outcome. When dividing property in a divorce, the court calculates a just and right division of the marital estate. A just and right division is a subjective test does not mean it will be fair to you. In Texas, a just and right division can mean an even 50/50 split. A just and right divisions can also mean a division that favors one party over the other.