Goldsmith, TX Divorce Law Firms & Lawyers

Your husband is correct. Property you own at the time of divorce is assumed to be community property and is divisible in the divorce.  This is true whether the marriage is six months or 30 years.   A portion of your 401(k) is your separate property to the extent it was earned prior to your marriage. The court cannot take that portion from you or divide it with husband.  It is your burden, however, to prove how much you had in your 401(k) at the time of your marriage.  Request a statement from the month of marriage from the administrator of your 401(k).  The value of the 401(k) at the time of the marriage then is subtracted from the value at (close to) date of divorce.  The result is the community, divisible portion of the 401(k).   So for example, if you had $25,000 in your 401(k) at the time of marriage, and now it is worth $100,000, $75,000 of the account is divisble in the divorce.  So you and your hsuband would be dividing the $75,000.00.  Of course, if Husband has a retirement account then you are entiteld to the community property portion of his retirement account.   

You need a deed of trust to secure assumption. This will allow you to continue making payments on the mortgage and free your ex wife from having to do so.  Under an assumption deed, the grantee becomes obligated to the grantor – but, it should be pointed out, not to the lender, since the grantee has not signed the note. Similarly, the grantor has not been released from the lender´s note, unless the lender has approved the assumption and expressly released the grantor in writing. An assumption deed is usually accompanied by a deed of trust to secure assumption, which enables the grantor to make payments to the lender if he discovers that the grantee has failed to do so, and then recover these "advancements" from the grantee. This enables the grantor to proactively preserve his credit. If he is not reimbursed by the grantee, the grantor may foreclose.

You are each entitled to half the value of the community property. If she takes more than half the value in property, she needs to pay you the difference.