1. TIP: Make sure you are using the correct forms for your situation. Many websites offer free forms and each websites forms vary. There are no standardized forms for divorce in Texas although the Texas Supreme Court has issued one set of forms. However, they will only apply if you have no children and no real property such as a house.
2. TIP: Do not be misled by the language or headings that are used in forms that may imply certain property or assets belong to one spouse. Unfortunately, many people don’t discover their rights until after the judge has signed their form decree and they have given away property to which they were entitled. And then it is too late.
3. TRAP: form language: “Husband is awarded “All of Husband’s cash and money in any bank or other financial institution listed in Husband’s name alone.” Just because it’s in one spouses name doesn’t mean the other spouse isn’t entitled to a portion of it. If the funds were deposited during the marriage, the funds are considered community property and subject to division.
4. TRAP: form language: “Husband’s cars, trucks, motorcycles or other vehicles listed below:” If both spouse’s names are on the title and debt is owed on the vehicle, additional documents may be required for title to be issued solely in husband’s name. Additionally, if wife’s name is on the financing, awarding the vehicles to husband in the decree will not relieve wife remove wife from the debt.
5. TRAP: form language: “Husband will keep the following personal property still held jointly: (For example, a bank account, but not real property such as a house or land.)” The language in a decree is not binding on third parties other than the spouses. This may award the funds in a jointly held account to the husband, but the bank will not deny wife access to the funds based solely on a divorce a decree.
6. TRAP: form language: “Husband’s Retirement Funds (For example, pension, profit-sharing, and stock option plans, 401ks, and IRAs). The language in the forms is misleading. Again, just because the funds are held in husband’s name and just because they are a result of husband’s employment, it does NOT mean they are solely husband’s property. They are presumed to be community property and therefore wife is entitled to a portion of them.
7. TIP/TRAP: If you do divide the retirement funds, 401(k), and IRA’s, the divorce decree is not sufficient to transfer the funds to wife. Other documents will be necessary. It could be a simple as a form from the financial institution or as complicated as a federally mandated specialized order depending on the type of plan and the nature of the asset.
8. TIP/TRAP: Some forms have sections that awards real property (such as a house) to a spouse. The transfer of title to real property is complex and requires more than a divorce decree. Additionally, neither the divorce decree, nor the title transfer documents, will remove a spouse from the mortgage. The mortgage company must be involved in that process and consent to the removal. A common occurrence is one spouse successfully transferring his legal interest in the marital residence to the other spouse, only to discover that the mortgage company will not release him from the mortgage. Now he is responsible for the mortgage on house he does not own.
9. TRAP: form language: “The other debts listed below which are not in Husband’s name alone (such as credit cards, student loans, medical bills, income taxes).” There is this same language for the wife as well. The assumption is that since they are not in either spouse’s name alone, they are in both spouse’s name together. Debt, especially joint debt, is often the most difficult issue to deal with in a divorce. Third party creditors are not bound by the terms of your divorce decree so great care should be taken when allocating debts.
10. TIP/TRAP: In Texas, a property division may NOT be modified! Once the judge signs the Final Decree of Divorce that contains your property division, there is no going back. Talk to a lawyer to determine your rights before the judge signs a form decree of divorce.