Property Division Legal Terminology

• Affidavit: A sworn, voluntary statement
• Agreement: A mutual understanding between two or more parties regarding each person agreed action to be performed in the past or future
• Answer: A respondent’s first pleading in response to petitioner’s allegations; if no answer is filed, the petitioner can obtain a default judgment
• Appeal: Proceeding to challenge a final decision made by a trial court; the case is delegated to a higher authority to determine if the trial court abused their legal discretion; a decision may be reversed on appeal
• Claim for reimbursement: A claim for reimbursement can be made at the time of divorce when one spouse’s estate – either community or separate is used to benefit or enhance another spouse’s estate – either community or separate; there are nine specific claims for reimbursement available to a spouse at the time of divorce
• Clear and convincing evidence: Evidentiary standard that requires the thing to be proved is highly probable or reasonably certain; this evidentiary standard is a lower burden than “beyond a reasonable doubt” which is used in criminal cases
• Commingling of separate and community property: Commingling of separate and community property occurs when property owned by either spouse is combined and no longer has a separate identity; the tracing principle is used to “un-commingle” spousal property
• Community out first presumption: During a marriage, when property is purchased with funds that have been commingled between spouse’s, the money used for the purchase will be presumed to be part of the community – not the separate property of a spouse
• Community property: Any property acquired by either spouse during a marriage except property acquired by gift, will, or inheritance
• Community property presumption: At the time of divorce, all property owned by each spouse is presumed to be part of the community estate; separate property of a spouse must be established by clear and convincing evidence; also any property purchased during a marriage is presumed to be a part of the community estate
• Default: When served with court documents, you must legally file an answer; failure to do so can result in a default judgment, which will likely be unfavorable for your circumstances
• Discovery: The formal process of information gathering and sharing between the parties of a case
• Dissolution: The legal term for divorce; The Family Code refers to a divorce as a suit for dissolution of a marriage
• Divorce decree: The final divorce decree can be agreed or ordered by the court; sets out the division of the marital estate, child custody, child support, and any other provisions that are necessary for the circumstances; the divorce decree is an enforceable legal document
• Due process: Conduct implemented procedurally in order to protect your rights as an individual; due process includes right to notice and right to a fair hearing
• ERISA: Employee Retirement Income Security Act is a federal statute that governs private pension plans and specific employee benefit plans; ERISA may affect the division of retirement plans at divorce
• Fault grounds for divorce: Fault ground are rarely used as grounds for a divorce; typically  in a divorce case, fault grounds are used in determining how the marital property shall be split or determining if spousal maintenance is warranted in the circumstances; the statutory fault grounds in Texas include: cruelty; adultery; conviction of a felony; living apart for three years; abandonment for more than one year; and confinement to a mental hospital
• Filing: The act of providing the court with documents that are officially added to the case file
• Final orders: Final orders can be issued in the form of a Final Divorce Decree, Order in Suit Affecting the Parent-Child Relationship or other order that is intended by the parties and the court to be enforceable permanently
• Fraud on the spouse: Fraud on the spouse is a doctrine used when one spouse has excessively and capriciously used community funds to defeat the other spouse’s community property rights; doctrine is used to challenge the transfer of community property
• Grounds for divorce: Most divorces are granted on no-fault grounds, however, The Texas Family Code provides fault grounds that can be plead for property division purposes and to obtain spousal maintenance; fault grounds in Texas include: adultery, cruelty, felony conviction, abandonment, living apart for more than three years, and confinement to a mental hospital for at least three years
• Inception of title rule: Inception of title rule is used to classify property as separate or community; the rule bases the classification off of when the property was acquired – before marriage or after marriage
• Injunction: A court order prohibiting or ordering a specific action; injunctions provide relief from harm when there is no other adequate remedy at law; injunctions can be granted on a temporary or permanent basis
• Judgment:  A court’s final decision regarding the rights and obligations of parties involved in a case; also called a ruling or order
• Jurisdiction: A court’s ability to hear a case; jurisdiction has two components – the person and the subject matter; a court must have proper jurisdiction over the parties involved and subject matter of a case
• Just and Right division: The method used by the court when dividing the community estate at the time of divorce; court has wide discretion in determining what is “just and fair”; many factors are taken into consideration when the court makes the division
• Management of property: When dividing a marital estate, the power to manage, control, and dispose over particular property may be taken into consideration; Community property can be solely managed by one spouse; For example, if each spouse has a vehicle that was acquired during the marriage – both vehicles are part of the community estate but are solely managed by each respective spouse
• Mandamus: An order from a court commanding a lower court to act in a particular way to correct previous actions of inaction
• Marital agreement:  An agreement between spouses with terms relating to the rights and obligations in any property, management and control of property, disposition of property, modification of spousal support, making a will or trust to carry out provisions of the agreement, benefits from life insurance policies, and other matters that are not criminal violations or against public policy
• Motion: A request to the court – either written or oral, asking the court make a specific ruling or to act in a certain manner
• No-fault divorce: The majority of divorces are sought on no-fault grounds; No-fault divorces are granted on the basis of insupportability; a marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation
• Partition: The act of dividing real property belonging to more than one person; a partition creates an individual interest in the divided property
• Petition for Divorce: The document used to commence the divorce process; once the original petition for divorce is filed, parties are notified and the information gathering process for a divorce begins
• Petitioner: A party that initiates a proceeding by filing a petition with a court
• Pre-marital agreement: A contract between two parties who have the intent to get married; must be in writing; can agree to terms relating to the rights and obligations in any property, management and control of property, disposition of property, modification of spousal support, making a will or trust to carry out provisions of the agreement, benefits from life insurance policies, and other matters that are not criminal violations or against public policy
• Pro Se:  A party to a suit who represents themselves in a law suit
• Property conversion agreement: An agreement between spouses that converts separate property of a spouse into community property; the agreement changes the character of property; often times, spouses enter into a property conversion agreement for tax benefits
• Qualified Domestic Relations Order: Often referred to as a QDRO – a qualified domestic relations order recognizes an alternate spouse’s rights at the time of divorce to receive all or part of benefits arising from the other spouse’s participation in a pension or other retirement plan; governed by federal law; can be penalized if benefits are paid too soon or too late
• Respondent: The party who responds to a suit initiated by a Petitioner; sometimes referred to as defendant
• Separate property: Any property acquired or owned by a spouse before a marriage; any property acquired by gift, will or inheritance during a marriage; any personal injury recovery for a spouse during the marriage – does not include loss of earning or medical expenses
• Spouse: A person who you have a marital relationship whether being a formal marriage or informal (common law) marriage
• Temporary orders: Temporary orders can be obtained to govern property and children issues during the pendency of the divorce suit; custody, support, and provisions governing the temporary use of community property, can all be ordered via Temporary Orders
• Tracing principle: Tracing is a technique used to analyze the expense of funds and determine whether the original source of funds came from a spouse’s separate property or came from the community