Debt amt. is +$40k. I have agreed to pay for debt. I petitioned for her to waive my retirement, when I retire. Her atty. responded, concerning only Child support and Health Coverage for child. No mention of my Retirement. Her atty. stated that Texas Law states that my retirement is Community Property, and Texas is a Community Property State so she is automatically entitled to my retirement when I retire. My Wife has a settlement coming, due to a slip and fall accident 3 years ago. When I informed her atty. the atty told me that i was not entitled to her % of the settlement. Why does the Community Property only work on her behave and not mine?
Thank you.
You have several questions all rolled up into one. This serves to show you that divorces are complex. This is why you need a lawyer. I suggest you get one and review these issues and others with them.
It does not matter whether the answer was timely, you did not take a default. The answer is now filed.
If all your retirement was earned during the marriage, it is community property. The settlement proceeds are more complicated. But, don't believe her attorney. You need your own.,
Good luck
These are all complex answers beyond our limited space to answer here. Do not depend on the legal advice of your exes attorney. I don't know why I (and my fellow attorneys) have to constantly say that. Our ethics do not allow us to outright lie but we can and will withhold critical information if not requested properly. Her attorney is not protecting your interests. You may be entitled to part of her settlement. Depends on the breakdown of the settlement or if there is not one. I see no timeliness issues here. Please get an attorney before its too late.
Property classification is one of the major jobs that divorce attorneys engage in and it requires a great deal of information, such as when you started your 401(k) and when you married your wife, also is her settlement purely for pain and suffering or is it also for lost wages. These issues, as well as many others will determine how your assets should be classified. An experienced divorce attorney will be necessary to help you sort through these issues. Regarding her answer date, it was technically late, based on the information that you provide; however, since she answered before the suit was resolved the late answer is without any consequence under the law.
You have received some good information about the property issues. You are going to get yanked around on the property issues if you try to figure this stuff out yourself. You really need to hire a lawyer.
It doesn't matter if the answer was untimely because it was filed before you could obtain a default. Once an answer is filed the opportunity for a pre-answer default disappears. In a Texas divorce you cannot obtain a divorce faster than sixty days (absent domestic violence) so any time an answer is filed during that sixty days your ability to default the respondent goes away.
Go hire a lawyer. Your are out of your league here. Recovery of personal injury damages are generally separate property if for pain, suffering, disability. The portion that is for lost wages is community. Go hire a lawyer now.
You've asked a number of question:
1. Was her response timely? As long as she responded prior to any hearings or trial dates, it was timely. The deadline for her response (take the day she was served, add twenty days, then go to the next Monday) was really a deadline for YOU. If she had not responded by that time, you would have been entitled to default judgment, provided the return of service had been on file for at least 10 days. HOWEVER, don't beat yourself up for not seeking a default judgment. She would probably have filed a motion for new trial. I am very familiar with the courts in Collin County and can assure you that the judge would have granted her motion for new trial and you'd be in this same situation you are in right. So, either way, you are where you are. Don't worry about the timeliness question.
2. Why is she entitled to your retirement? I don't know that she is. The portion of the retirement that was earned during the marriage is community property and it is subject to division by the court. However, Texas is not a 50:50 state like everyone says. It is a "just and right" state, meaning that the court has discretion as to how to divide the community estate so that the division is just and right given due regard for the circumstances of each party. That usually ends up at close to a 50:50 division, but you have room to argue (so does she).
Secondly, we don't divide estates up by just cutting every debt and every asset in half. We add up all the assets of the community, subtract all the debts payable from community assets, and try to get the bottom line to about 50:50. (I know, I just said it's not a 50:50 state. We always start with figuring out what a 50:50 division would look like because that is the most likely outcome at trial.)
If your retirement is a pension, then it's value may not be ascertainable at this time. In that case, you would take the retirement out of the 50:50 equation and deal with it separately. If the retirement is like a 401(K) (there are a number of plans similar to 401(K)s, such as 403(B)), then the value is ascertainable and you'd probably include it in the 50:50 mix. (If there are enough assets to get to 50:50 without including a tax-deferred plan such as a 401(K), I would keep the 401(K) our of the 50:50 equation and deal with it separately, just like a pension.)
3. Why can't you get any of her PI settlement? Again, I don't know that you can't. Personal injury awards for loss of earning capacity ARE community property. PI awards for pain & suffering and future medical are clearly not community. See Tex. Family Code section 3.001(3). That is why it is VERY important for PI settlements to explicitly say $X is awarded for past medical, $Y is awarded for future medical, $Z is awarded for pain and suffering, and $C is awarded for loss of earning capacity. $C is community and subject to division.
BOTTOM LINE: You need to hire a good family law attorney to help you divide up the estate. It's not simple and it sounds like she has hired a knowledgeable family law attorney who is going to aggressively come after all that he or she can on your wife's behalf.
