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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
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Experience:  Attorney experienced in all aspects of family law
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Spouse & I, are on course for a "Irreconcilable Differences"

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Spouse & I, are on course for a "Irreconcilable Differences" divorce, after 37 years of marriage. What is the best way to handle "community" property, so that neither of us is without a dwelling, possessions, and savings (ie. pension, TDSP, cash savings in immediate access)? With siblings on both sides that have been through at least one divorce, I'm leary that there will be an effort made on her part, to "take me for all I'm currently worth", because she has high credit card debt (I don't have any), she has little retirement savings from past/current employers, and she's been addicted to spending due to an impoverished childhood. We have a home where grandkids enjoy visiting and see it as "Gammy's house". I don't want her to lose the house in the devorce; however, enough of the cost to own the present home, as come from my salary over the 37 years.
Hello there:

Thank you for entrusting me with your question. I would first just take a moment to respond to some of the statements you made, even though they are not questions. You said that you are leery of your wife taking you for all that you are currently worth. I do not know the circumstances in your siblings' divorces, but in a community property state like Texas it does not work like that unless the parties agree otherwise. The law does not bend or break because of the anger of a spouse. Community property is divided 50/50. She does not have the power to make the law do something it does not.

You asked how to divide property so that neither of you are without a dwelling, possessions, and savings. Before answering, I would just clarify that I am not defending the law; I am just explaining it. The reality is that it may not be possible. While married, you shared a home, you shared assets, you shared expenses, you shared income, etc. etc. When you divorce, you will basically have the same income but you will have to maintain separate homes and separate assets, while paying separate expenses. There is less to go around and that is a natural consequence of separating. You want her to keep the home--that would be great and if you have enough assets it might even be possible, but if you take your current assets and income and cut them in half, and if she is obligated to pay you 1/2 the equity in the home in exchange for keeping the home, is there enough left over for her to keep the house? For most people, the answer would be "no". That means that you would have to make the choice of either subsidizing her standard of living or you losing the home.

My suggestion is to protect your rights and claim all that property to which you are legally entitled. If you are legally entitled to it, keep it; if you are not, don't. If, at the end, you feel that you have received more than your fair share, or even if you just want to help your wife with her position, you can always make a gift to her in excess of what the court mandates.

I understand that you may have follow-up questions. Let me know if further clarification is needed. Thank you.
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