Divorce after a long-term marriage brings a lot of unique challenges. Who keeps the house? My husband worked the majority of our marriage while I raised the children, how will I survive? I am about to retire; will I really be losing half of our estate? These are just a few of the issues that spouses in long-term marriage face.
Q: How will our estate be divided?
Texas is a community property jurisdiction. Any property acquired during the marriage is considered part of the community estate and is subject to a fair and equitable division. Equitable does not always mean equal as discussed below. Additionally, any property owned prior to marriage, was gifted, or inherited is that spouse’s separate property and will not be divided—only confirmed as that spouse’s separate property.
However, long-term marriages bring unique challenges in dividing the estate. Sentimental value may play a significant role in the marital house. What if this was the house where the children were raised, and the spouses lived there for twenty years? This can sometimes increase the value of an asset if both parties wish to retain it after the divorce.
Q: Do I get to keep my retirement?
Most likely. Depending on the type of retirement, there is typically a cost associated with dividing many retirement plans such as a 401(k) or pension. A separate order will need to be drafted called a Qualified Domestic Relations Order. Additionally, there are tax considerations that need to be addressed to a spouse receiving all or part of the other spouse’s retirement. The most common scenario is awarding the retirement to the employee spouse as a part of their fair and equitable division.
Q: Who keeps the house?
Generally, the parties will come to an agreement about who will ultimately be awarded the marital residence. The spouse keeping the house will need to “buy-out” the other spouse for their portion of the equity. Unfortunately, if there are not enough assets to buy-out the other spouse, then the house may ultimately need to be sold.
Q: I do not have an income; how will I survive?
Depending on your situation, you may have a claim for a disproportionate division of the marital estate or spousal maintenance—Texas’s version of alimony. It is difficult to qualify for spousal maintenance; the starting point is that you do not qualify—you need to prove that you cannot meet your minimum needs. If you do not qualify for spousal maintenance, then you should ask for more of the community estate.
You should also consider hiring a Certified Divorce Financial Analyst. These individuals are specially trained to assist a spouse analyze the community estate, build a budget for the spouse post-divorce, and aid the spouse in targeting specific assets or have specific goals in dividing their estate. Certified Divorce Financial Analyst are also usually financial advisors. Once the divorce has been finalized, they can also help maintain your investments.
Q: Do I need to update my will?
Yes! Under Texas law, any bequests made to your spouse are revoked upon the finalization of your divorce. This means that during the divorce, your estate planning documents may still be in full force and effect. This is especially true if you signed a medical power of attorney. Imagine allowing your soon-to-be ex-spouse the power to make medical decisions for you if you become incapacitated in a car wreck after they filed for divorce. Best practice is to update your estate planning documents as soon as possible.
Long-term marriages bring a lot of unique challenges. It is important to have a legal team behind you that understands your situation and can guide you through a complicated and emotional time in your life.
The attorneys at Hunt Law Firm, PLLC are here to help. If you would like more information or to speak with an attorney, use the contact form on this page or feel free to give us a call at 832-781-0320.