When you filed your divorce, you thought you and your spouse would be able to agree upon everything, and you would get a divorce as soon as the minimum waiting period passed. Of course, one of the reasons you wanted a divorce is that your spouse is a very uncooperative person. And of course, once you started the divorce, your spouse showed his or her uncooperative nature again, has refused to settle anything. The only way out is to actually go to court on your divorce.

You receive a call from your attorney advising you that the case is set for trial on a certain date. All of a sudden, you are facing the prospect of having to actually testify about the peculiar facts of your case. Of course, you know that the Judge will administer an oath to you along the lines of “do you promise to tell the truth, the whole truth, and nothing but the truth?” You also know it is perjury to go into court and lie. You would not do that. However, you have never testified before in court. You do not have any idea what to expect. Here are some very practical tips for testifying in court:

1. Listen to the question. Make certain you understand the question. If you do not understand the question, ask the attorney to repeat the question.
2. Repeat the question in your head.
3. Answer the question with the shortest answer consistent with the truth, and shut up.
4. Do not volunteer information.
5. Do not get angry.
6. Answer the question truthfully, even if the answer hurts you.
7. Watch out for the compound question.
8. Watch out for the question that assumes facts that are not true.
9. Watch out for questions that give a wrongful summation of the facts.
10. Do not characterize your testimony.
11. Try to avoid using absolute words, like “no”, “never”, and “all”.
12. Avoid getting boxed in with “everything you remember”, or “everything you know”.

If you live in a city that has a number of different courts, I strongly suggest that you take a day off, go to the courthouse, and watch several trials. I do suggest that you do not go in the courtroom before the judge that you will actually appearing before, in your case. Instead, watch a criminal case, a personal injury case, probate case, or a divorce case in another court. It is best to find a court that is actually conducting a trial, whether there is a jury, or a bench trial, or the judge is conducting a formal hearing, with the witness on the witness stand, counsel at counsel tables, and different witnesses.

You cannot remake the facts of your case. However, by diligent preparation before you go to trial, you will enhance the probability that the court will look favorable upon the facts of your case.

When a court tries a divorce case concerning property, the court will try to categorize property either as separate property or community property.
A spouse’s separate property consists of:

1. The property owned or claimed by the spouse before marriage;
2. The property acquired by the spouse during marriage, by gift, devise, or descent, and,
3. The recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during the marriage.

The significance of separate property is that a court cannot divest a spouse of their separate property. Therefore, once a court determines that a particular piece of property is separate property, then it must set that property aside to the separate property owner. The burden is upon a spouse to prove that property is his or her separate property by clear and convincing evidence.

Community property consists of all property, other than separate property acquired by either spouse during marriage. Property possessed by either spouse during the dissolution of the marriage is presumed to be community property, unless the spouse can prove that it is their separate property by clear and convincing evidence. Community property consists of almost anything of value, such as real property, personal property, stocks, bonds, savings accounts, automobiles, retirement benefits, 401(k) accounts, IRA accounts, stock options, copyright royalties, patents, income, rental income, life insurance and virtually anything else of value.

Once the court determines that property is community property, then the court must divide the property. In dividing community property, the court is obligated to order a division of the estate of the parties in a manner the court deems “just and right”, having due regard for the rights of each party and any children of the marriage. In dividing the community estate of the parties, the court typically takes into account one or more of the following factors:

• Fault in the breakup of the marriage
• Health of the parties
• Education of the parties
• The present earnings of the parties
• The earning capacity of the parties in the future
• The party raising the minor children of the marriage
• The specific nature of the property
• Any separate property that a spouse may have
• Any inheritance that a spouse is likely to receive
• Tax issues in connection with property
• Any fraud that one spouse has committed against the community or the other spouse
• The debts of the parties

As a practical matter, if the court has two people before it, with the same educational background, earning the same income, and having the same opportunities in the future, and no children, the court will divide the estate of the parties 50/50. As more facts favor one individual, then the court has a tendency to award that individual a greater percentage of the community property. For example, if the wife is clearly at fault in causing the marriage to break up, is young, and in good health, is earning substantial income, has an MBA, and expects to inherit a lot of money from her family, and the husband has only a high school diploma, suffers from deteriorating help, has a low paying job, and is taking care of the parties three children, then the husband could expect to receive a substantially greater portion of the community property than the wife. Property awards up to 90%, in very unusual circumstances, have been upheld by the appellate courts in Texas.

Many clients want to approach a divorce settlement insisting that they get 60%, 70%, or 75% of the community property; because they believe that the other party was at fault in the breakup of the marriage. Such an approach can make it very difficult to settle a case without trial. Usually the other spouse does not believe that he or she was at fault in the breakup of the marriage, or even if they were, they believe they were justified in engaging in the conduct because of the complaining parties approach to the marriage. Also, the courts frequently do not place the same degree of emphasis upon one particular issue as the clients frequently do. For example, while one party may clearly be at fault in the breakup of the marriage, the court will be weighing that issue against the issues of present earning ability, future earning ability, educational background of the parties, etc. Also, the courts frequently have a different perception of the value of the community estate, and that can substantially effect the court’s division of property. For example, if the party who claims that the other one is at fault, believes that the equity in the house is worth $30,000.00, and is demanding 70% division from the court (or $21,000.00), the court may very well find that the equity in the house is only $10,000.00, and award the party not at fault only 60% of that equity ($6,000.00).

Of course, the vast majority of cases do not go to trial. While evaluating any settlement, the parties should take into account all of the factors that the court is going to take into account, when settling a case, there are other factors that have a significant bearing on the settlement. For example, if one party particularly wants the house, they should probably be willing to accept a lower percentage of the community estate in a settlement in order to make certain they get the house. There is absolutely no guarantee that the court will award a person the house. The court may very well decide that it would be better to sell the house, or award the house to the other spouse.

If you and your spouse enter into a written property division, the Courts will almost always approve the agreement. The settlement agreement must include all assets (house, cars, stocks, bonds, retirement, etc.), and liabilities (mortgages, loans, credit cards, taxes, etc.). If the parties cannot agree on a division of property, then the Court will divide the parties’ community property “in a manner the Court deems just and right, having due regard for the rights of each party and any children of the marriage.” Please note that contrary to popular impression, the Court is not required to divide community property 50%/50%. Some of the factors the Court may consider in dividing community property are disparity of income, education and training, health, age, fault in breakup of marriage, nature of property, custody of children, and the parties’ capabilities. There is no way to tell how the Court will divide the community property — it is a gamble. This is why you can trust that John K. Grubb and Associates will help you tip the scales in your direction and make sure you get a fair division of your rightful property.