Austin Texas Family Law, Eminent Domain and Personal Injury Lawyer FAQ
Austin, Texas family law, eminent domain personal and injury lawyer frequently asked questions and answers
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Can we each keep our own retirement in divorce?
The spouses may agree to each keep their own retirement benefits in divorce. Make sure your final decree includes language that gives each spouse 100% of any retirement benefits in that spouse's name. You do not need to use a Qualified Domestic Relations Order ("QDRO") if each spouse is keeping their own retirement benefits.
Can retirement benefits be divided in divorce?
Retirement benefits earned by a spouse during the marriage are usually considered to be community property that may be divided by the court. This is true even if the spouse earning the benefit thas not yet retired.
Retirement benefits are often a couple’s most valuable asset. Retirement benefits include 401(k) accounts, individual retirement accounts (IRAs), 403(b) accounts, pensions, military retirement, employee stock ownership plans, profit sharing plans, thrift plans, Keogh plans, stock option plans, annuities and variable annuity life insurance.
If you want the court to divide retirement benefits in your divorce, you must include specific information about the retirement benefits in your divorce decree. You must also ask the judge to sign an additional form, usually called a Qualified Domestic Relations Order or QDRO (unless you are dividing an IRA). You should have the QDRO prepared before you go to court, so the judge can sign it when you finish your divorce. Note that various companies insist on their own specific QDRO language, so it is important to spend the time and money to divide benefits correctly.
After the judge signs the QDRO, send a certified copy to the retirement plan administrator. The retirement benefits will NOT be divided until the plan administrator gets a certified copy of the QDRO that was signed by the judge.
Can I get my name off the debt if my spouse keeps the car?
Divorce does not affect your creditor's right to collect. Your spouse must refinance the car to get your name off the loan debt. If your spouse cannot or will not refinance the loan, you are still responsible for the debt.
How do I transfer title to a vehicle in my divorce?
If your divorce decree awards you a vehicle that is in both your name and your spouse’s name, take a certified copy of the decree to your local county tax office and apply for title. Remember to bring proof of insurance and the application fee.
If your divorce decree does not include the vehicle, you must have a properly assigned title to transfer title. Your ex-spouse may assign title to you by signing the back of the actual title or by signing a power of attorney.
Note that you should not have to pay taxes on a title transfer occurring because of divorce. Check the tax-exempt box on the title application form.
Should I include my car's VIN in my divorce decree?
You should include the vehicle identification number (VIN) for each vehicle in your divorce so that there is never a question as the the exact vehicle involved. The VIN may be found on the lower-left corner of the vehicle dashboard, in front of the steering wheel or inside where the driver-side door closes. Try looking through the windshield from the outside to read the number. The VIN may also be located on the vehicle title, insurance documents or owner's manual.
Does it matter whose is listed on the deed for our house?
Land or a house purchased during marriage is community property regardless of whose name is on the deed, unless the house was purchased with the separate property of one spouse.
Why include a legal description of my house or land in divorce?
It is vital to include the complete legal description of your house or land in your divorce decree. The legal description is the language used to legally identify real property.
You may locate the legal description on the most recent deed for the property, which you may get at the county clerk’s office in the county where the property is located.
It is very important that the legal description be written in your Final Decree of Divorce exactly as it is written on the most recent deed for the property.
The address of the property is NOT the same as the legal description.
Note that the shortened legal description on your property tax records is NOT the complete legal description and may be incorrect, which could cause problems later if used in your decree.
What if we own (or are buying) a house or land together?
If you and your spouse have a house or land and are considering divorce, you should consult an attorney. A lawyer can help you deal with the issues that arise in a divorce when you own a house or land.
Handling real estate incorrectly in a divorce can be costly, as in the following examples:
You could lose ownership of the property but still be responsible for the mortgage. A creditor's (in this case, a mortgage company's) right to collect a debt is not affected by your divorce decree. If you and your spouse are listed on the mortgage and the divorce decree gives the house or land to your spouse and your spouse does not pay the mortgage, the mortgage company can still come after you. This is true even if the judge ordered your spouse to pay the mortgage. A lawyer can help you figure out how to protect yourself in this situation.
You might be unable to enforce an and order that your spouse must pay you part of the value of your house or land unless this obligation is secured by a lien on the property.
You may be unable to sell the property later without your spouse's consent. If you are keeping the property, a Special Warranty Deed giving you sole ownership of the property should usually be prepared by your lawyer, signed by your spouse and filed with the property records office.
How does divorce affect debt?
Your Final Decree of Divorce does not affect your creditor’s right to collect a debt from you. If both your names are on a debt such as a mortgage or a car loan and your spouse does not pay, the creditor can still come after you. Talk to your attorney about how to protect yourself from debts in divorce.
What if we disagree on how to divide our property and debt?
If you and your spouse disagree on how to divide your property and debt, the court will divide your community property and debt in a way that the judge deems to be “just and right.” This often means a 50/50 split, but not always. For the factors that can change this division, you should consult an attorney.