Archive for February, 2013

A Primer for Division of Assets and Debts in a Texas Divorce

Friday, February 15th, 2013

Property division is an important aspect of most divorces, but the distribution of community property assets and debts between spouses takes on special importance in Texas because of our state’s limitation on availability, amount and duration of spousal maintenance (referred to as “alimony” or “spousal support” in other states).  This primer on property division in divorce provides an overview, but the best way to obtain legal advice about property division issues that pertain directly to your situation is to contact experienced Texas divorce attorney Alex Tyra and to schedule a free consultation.

Distinguishing Community Property from Separate Property

There are two types of states for purposes of property division: (1) equitable property states and (2) community property states.  Because Texas is a community property state, we will focus our discussion on community property.  Community property includes all assets and debts acquired during marriage that are transferred via inheritance or gift to one spouse.  Both spouses have an undivided and equal interest in all community property.

Separate property, which is not subject to division by a Texas court in divorce, includes all property and debts acquired by each spouse prior to marriage or received during the marriage by means of gift, devise, bequest or other form of inheritance.  If property is acquired during the marriage, it is presumed to be community property unless clear and convincing evidence is presented that the property is separate property.  Separate property is not subject to division during divorce but a substantial disparity between the spouses during divorce may be considered when a court is try to determine a fair and equitable division of community property.

Identification, Characterization and Valuation of Assets and Debts

The initial step in dividing assets and debts in a Texas divorce is identifying all assets and debts and characterizing this property as community or separate.  Sometimes property is not exclusively community or separate because these disparate types of assets have been commingled.  Commingled property can present the most challenge because it has both a separate and community property component.  Common examples include pensions, 401K accounts and real properties that are owned by one spouse during marriage but receive contributions from the income of either spouse during marriage.  Income of either spouse during marriage is community property.  When community property is used to improve real estate or enhance the value of a 401K through direct investment and appreciation from such contributions, this creates an asset with both a community and separate property component.

The process of valuing property involves preparing a sworn inventory and appraisement, which is akin to a personal financial statement.  The value of retirement accounts, investment accounts, bank accounts and similar assets are based on a current statement.  Assets like real estate and business interests may require experts to provide a valuation.  Because business valuation experts and real estate appraisers can differ greatly in their opinions regarding valuation of an asset, it is important to be careful in selection of experts for valuation purposes.  If the judge or jury must make a determination on value, an expert who can provide a clear and effective justification for a valuation can be extremely important.

Factors in Dividing Property in a Texas Divorce

It is important to understand that the court is not required to divide community property equally but rather reach a fair and just division.  There are a range of factors that a Texas court will consider when dividing community property, including but not limited to the following:

  • Duration of the marriage
  • Relative earning capacity of each spouse
  • Contributions made to the community estate
  • Comparative value of separate property of the spouses
  • Age of each party
  • Waste of assets committed by either spouse
  • Education of each party
  • Fault in causing the breakdown of the marriage
  • Party with whom the children reside

When both spouses have similar earning capacity and similar expectations regarding duration of employability based on age, the division might be equal but may range to sixty-forty where one spouse has substantially greater earning potential.   The division can be even more unequal depending on the specific facts of the case.  Texas divorce attorney Alex Tyra offers a free consultation during which he can advise you about property divisions or other divorce issues.  We invite you to contact us in our Longview office at 903-753-7499 or visit our website and submit a case contact form.

Why You Are the First Line of Defense in a Texas DUI Case

Wednesday, February 6th, 2013

When drivers see the flashing lights in your rearview mirror after a night with friends or family and a few drinks, the sense of dread that envelopes most drivers is understandable.  The inevitable interaction you are about to have with a law enforcement officer will determine whether you drive home or the officer hauls you off to jail.  Most people presume that a DUI arrest and conviction is inevitable in such a situation, but many people drive home following such encounters while only fifty percent of those who take a DUI case to trial are convicted.  What every motorist should keep in mind is that your decisions and behavior when stopped after consuming alcohol in Texas can significantly impact both the short-term and long term outcome of this confrontation.  We have provided some helpful tips that may put the odds in your favor:

Defuse Officer Hostility: Police officers have a difficult job when they pull a driver over.  Many officers are shot during these encounters so officers have a certain amount of apprehension when pulling over a vehicle.  Drivers who do a lot of reaching around in their vehicle or place their hands where an officer cannot see them will only increase the apprehensiveness of the officer.  When you pull over, you should promptly remove your license from your wallet and grab your vehicle registration and hold both documents in your hand while keeping your hands visible on the steering wheel.  The officer will ask for these documents so simply hand them to the officer when he asks.

Be Cooperative But Not Too Cooperative: While you should be courteous and respectful, you are not obligated to provide information about any of the following issues about which the officer may inquire:

Where are you headed?

Have you been drinking?

How much have you had to drink

Where are you coming from?

If you have had anything to drink, you should never volunteer answers to any of these questions.  The officer’s inquiries have two objectives.  The first objective is simply to get you to admit information that will provide sufficient basis to conduct a DUI investigation and/or support probable cause for a driving under the influence arrest.  If you are asked these questions, a polite response that you would rather not answer any questions without a lawyer is appropriate.  The officer will also be observing you during this interaction for signs of intoxication.  Common physical signs that appear in police reports that are alleged to suggest intoxication include odor of alcohol on the breath, watery bloodshot eyes, slurred speech and lack of coordination.  The more you engage in a discussion with the officer the more opportunity the officer has to look for these signs of alcohol impairment.

Just Say No: The officer may ask you to participate in field sobriety tests (FSTs) and take a portable breath test.  Motorists are not required to participate in either of these activities so there is no benefit in doing so if you have had even a small amount to drink before driving.  FSTs have many flaws and portable breath tests can also be inaccurate so you should simply ask the officer if either type of testing is completely accurate.  The officer will not be able to claim that they are completely accurate, which provides a basis for you to justify waiting until you talk to an attorney before performing any testing or answering any questions.

While following these tips will not necessarily prevent a DUI arrest, police officers will generally have less evidence to establish probable cause for an arrest.  If the officer is not able to rely on physical signs of impairment, FSTs or a portable breath test, the evidence available for a Texas DUI prosecution may be sparse.  Texas DUI attorney Alex Tyra offers a free consultation during which he can advise you about your legal rights and potential strategies for avoiding a DUI conviction.  We invite you to contact us in our Longview office at 903-753-7499 or visit our website and submit a case contact form.