Saturday, April 07, 2007

Finding Property

The first step in any property division is first locating the property that might be out there.
Remember that in Texas property is either characterized as separate or community. If it is community, it is subject to division of the court and therefore should be identified so the court can divide it. If it is separate it will still need to be identified so that the court can formally declare it as separate property. Without a separate property finding by the court, the particular item- be it your dear departed aunt Sally's china or the stocks your purchased prior to marriage could be still at risk of being awarded to your former spouse. This is because most decrees of divorce contain a clause that any property not disclosed will be subject to future division of the court.
At the beginning of a case in which it looks like lot of property issues will be involved, it is a good idea to start a property file. it will contain cover sheets of financial statements, health insurance, insurance policies, deeds, employee benefits, 401(k) statements, brokerage accounts, etc. This will provide a good start in drafting a preliminary spreadsheet of what property exists and where to begin digging deeper.
It is generally a bad move to try to conceal property during a divorce. If there is a doubt that one of the parties are not being voluntarily forthcoming in disclosing all the property that exists, any divorce lawyer worth his or her money will use pre-trial discovery to uncover the truth of what exists. This can include reviewing of all financial records including bank deposits, tax returns, accounting books, deposit slips etc. In addition, parties generally must exchange Inventories and Appraisements, which are sworn statements that detail all property of the parties whether they are of a community or a separate nature. If it later turns out that one of the parties was intentionally not being truthful, the judge or jury can punish that party by rendering awards of property that grant most of the property to the innocent party. This is in addition to the possibility of being charged for perjury and false swearing.