The division of marital property has the potential to be the most hotly debated term in any divorce, and few things complicate the matter more than high assets, which make the stakes for both parties that much higher.
If you are facing a high-asset divorce, protecting your financial rights is paramount, and one of the surest means of helping you do so is consulting with an experienced Killeen property division attorney early in the process.
Why High-Asset Divorces Are Unique
High-asset divorces tend to involve a wide range of assets, but there’s more to it than that. The following factors all come with their own brand of complications for your divorce:
Professional practices
Highly compensated professional executive careers
Additionally, many couples who go through high-asset divorces are interested in keeping the proceedings private, which means keeping this divorce term out of court, if possible. Finally, high-value assets need to be characterized, valued, and addressed in terms of division, and each of these processes can prove challenging.
Working closely with a dedicated property division attorney with an impressive range of experience successfully guiding complex cases toward advantageous outcomes is well advised.
Is the Asset Community or Separate Property?
Before you can address the division of your marital property in a Texas divorce, each asset must be characterized as either community property or separate property.
Community or Marital Property
In Texas, if the asset is not separate, it is generally considered community property – also known as marital property. As such, anything that you, your spouse, or both of you acquired during your marriage is marital property that must be addressed in your divorce.
These assets are owned by both of you, and, as such, they are typically divided between divorcing spouses equally. However, the court has considerable discretion in the matter, which means that your marital property – or its value – will not necessarily be divided between the two of you equally.
Separate Property
Separate property belongs to one spouse alone. Generally, this is because the spouse to whom the property belongs owned it before marriage and kept it separate throughout the marriage. Other forms of separate property include gifts, inheritances, and personal injury settlements received by either spouse during the marriage.
However, the line between separate property and marital property is not particularly strong, and any commingling of the two can erase it. Keep these points to keep in mind when considering the distinction between marital and separate property:
A valid prenuptial or postnuptial agreement can succinctly address the matter of what is and what is not separate property.
Any income generated by a separate property is marital property.
Gifting a separate asset or part of a separate asset to your spouse makes that asset or that portion of the asset your spouse’s separate asset.
In the State of Texas, you are married until you are divorced, which means that anything either of you acquires while you live separately is marital property.
Mixed Property
Some assets are both separate and community property. For example, if one of you receives an inheritance that you combine with marital assets to make a down payment on a home, the house you purchase is likely to be classified as both separate and marital property. This distinction will correspond with the percentage of separate and marital funds used.
Characterizing Your Assets
A fundamental aspect of the division of marital property is characterizing each property in the estate. This determination involves all the following actions:
Identifying the assets that make up the marital estate
Determining when each asset was acquired
Determining whether each asset is marital property, separate property, or a mixture of the two
The higher the assets, the more complex this characterization process becomes. Ultimately, each asset and debt that belongs to the couple or to either spouse must be identified, valued, and characterized. This process can be overwhelming to face alone, so be sure to work closely with a skilled Killeen divorce lawyer.
Factors that Affect the Division of Marital Property
Texas courts look at an array of factors in the determination of property division, and the higher the assets involved, the more complex each factor can be. Consider the following factors that can influence the division of marital property:
Any disparity between the spouses’ incomes
Each spouse’s age
The overall health of each spouse
The length of the marriage
Each spouse’s earning power
Each spouse’s business opportunities
Each spouse’s highest level of education
The nature of the assets in the marital estate
The size of each spouse’s separate estate
Each spouse’s debt load and his or her relationship to each creditor (For example, is the creditor a family member who is unlikely to demand repayment?)
Each spouse’s financial obligations
Either spouse’s need for future support
Whether either spouse is responsible for the breakup of the marriage – even in a no-fault divorce
Any dissipation of marital assets by either spouse
The tax considerations of the proposed property divisions
Any extenuating circumstances that may prevent or limit a spouse’s ability to work outside the home, such as caring for a child with special needs
Any factor the court considers relevant to the unique case in question
The division of property in divorce is always specific to the case at hand, and the higher the assets, the more complications are likely to arise.
Valuing Your Assets and Properties
A complicating factor common in divorces with high assets is assigning values to specific assets and properties to which both divorcing spouses can agree. While it generally isn’t difficult to assign an accurate value to real estate, assets like the following can prove difficult to value:
Businesses
Professional practices
Joint holdings
Artworks and other valuable collectibles
Collections
A skilled Killeen divorce lawyer will help you identify your assets and understand the property division laws that apply to your specific case.
Mitigating Circumstances
When it comes to putting a value on the assets that need to be divided between you fairly in your divorce, it’s also necessary to take considerations like the following into account:
Whether or not the property can be sold outright and divided between you – or if a tradeoff is a more reasonable proposition
The degree to which selling an asset at the time of your divorce is feasible in terms of the market
Whether or not one spouse can be awarded a primary property, such as a business – when that property represents the bulk of the estate
The degree to which walking away from an asset limits the earnings of the spouse doing the walking – such as when both spouses run a lucrative business together
It’s important to note that a thriving business can be difficult to value in relation to factors like goodwill, the market, expected growth, and the economy overall. Putting a price on a business that both spouses agree to can be exceptionally time-consuming and costly – often involving in-depth accounting methodologies that can include forensic accounting.
The Matter of Hidden Assets
It is necessary to point out that the higher your assets are, the more room there is for financial shenanigans. For example, if you own a business together but your spouse runs it and has a far greater understanding of the related financials, there are myriad ways for your spouse to hide, spend down, give away, gift, or otherwise keep assets that also belong to you out of your divorce.
While you may consider this unscrupulous behavior beneath your soon-to-be ex – which may be true normally– the stress of divorce can lead otherwise upright spouses to engage in surprising practices. If you’re at a disadvantage in terms of your financial knowledge, having a forensic accountant on your team may be advised.
Prenuptial and Postnuptial Agreements
One tool that couples with high assets often employ to help keep separate assets separate and to help ensure a smooth division of marital property in the event of divorce is marital agreements.
Both prenuptial and postnuptial agreements are contracts that each spouse enters into voluntarily – generally with the seasoned guidance of a trusted property division attorney backing up each. The difference between prenups and postnups is a matter of timing.
Prenuptial agreements are drafted and signed prior to marriage, but they go into effect upon marriage.
Postnuptial agreements are drafted and signed during marriage, and they go into effect once they are signed by both parties.
Generally, these contractual agreements are binding. While a prenup or postnup can be challenged, Texas courts generally won’t negate the terms included unless you can prove that you did not sign the agreement voluntarily or you can prove that the agreement is “unconscionable” – or unfair – and that one of the following circumstances also applies:
You did not receive a fair and reasonable accounting of your spouse’s assets and liabilities before signing.
You did not waive your right to a fair and reasonable accounting of your spouse’s assets and liabilities in writing.
You did not have and reasonably could not have had adequate information regarding your spouse’s assets and liabilities.
If you are in a prenuptial or postnuptial agreement that you believe to be unfair, consult with a Killeen divorce attorney to ensure that your financial rights are protected.
Alternate Dispute Resolution
The higher your marital assets, the greater the stakes involved and the more reasons you have to keep your divorce out of court. When one or more divorce terms cannot be resolved between the divorcing spouses, the couple must put aside their decision-making power and turn to the court to make the remaining decisions on their behalf.
Common Advantages to Keeping a Divorce out of Court
While high assets make a fair division of marital assets more complicated, there are many reasons for wanting to keep the matter out of court:
The information becomes a matter of public record when the division of your marital property is resolved in court.
You abdicate the power to make financial decisions on your own behalf when you turn to the court to resolve the division of your marital property, which puts you at the mercy of the court’s discretion.
Generally, going to court is more time-consuming and costly than resolving the matter between yourselves.
Mediation
Mediation is a form of alternative dispute resolution (ADR) that many divorcing couples with high assets turn to in their efforts to find middle ground in relation to property division.
At mediation, both spouses – along with their respective attorneys – meet with a professional mediator in the role of a neutral third party who helps them explore potential compromises that balance the financial rights of each.
Couples generally get out of mediation what they put into it. If both spouses are willing to engage in a reasonable give-and-take process, it can be a successful means of resolving the matter of property division. To get the most out of mediation and protect your rights throughout the process, you should have a solid handle on your marital financials.
Mediation is only binding if both spouses come to a mutually acceptable agreement and sign the mediation documents.
Collaborative Divorce
Collaborative divorce involves a commitment to the collaborative divorce process, which includes each spouse teaming up with an attorney with the requisite skill and experience to work as a collaborative divorce attorney. Other professionals, such as forensic accountants, may also assist.
Both sides commit to hammering out their differences and negotiating acceptable terms during the collaborative process. If either calls it quits along the way, each spouse must retain new counsel and begin again at square one.
In other words, collaborative divorce is a great option when both divorcing spouses are focused on their commitment to compromise and fair negotiations. Otherwise, it can amount to an additional expense that only extends the amount of time needed to obtain a divorce.
An Experienced Killeen Property Division Attorney Can Help
Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is an accomplished property division attorney with an array of impressive experience skillfully protecting the rights of his clients while helping them achieve favorable divisions that honors their financial priorities.
He is also here for you, so please don’t put off contacting us online or calling (254) 781-4222 for more information today.