DID YOU FINISH YOUR DIVORCE?
We get a lot of different types of divorce cases in our Fort Worth law office, but one that seems to come all too often involves people who have been divorced, sometimes for days, but sometimes for years, but who did not do all that they should have to finish up the divorce. Sometimes we can solve the problem and sometimes we can’t.
One example is where one party was awarded real estate (the family home, perhaps) and does not take care to execute the paperwork to actually transfer the property. At the least, the person giving up the property should sign a special warranty deed transferring his or her share of the property. Once filed in the real estate records of the county where the property is located, then it not only transfers the property, but also serves as notice to third parties that they cannot buy the property from the person giving it up.
In the same example, if there is mortgage on the property, it is important for the person receiving the property to execute a deed of trust to secure assumption. Without that, it the receiving party defaults, it could come back against the other party who would have no interest in the property to protect him or her. That could prove to be an expensive mistake.
We not only ensure for our clients that these (and other) documents are properly signed and filed, but we also put language in the decree to help transfer the property if there is a problem getting the documents filed.
Another problem comes when certain financial accounts are divided. If you have a 401(k), an IRA, or certain other accounts, the divorce decree does not automatically divide them. For example, with a 401(k), there has to be a Qualified Domestic Relations Order signed by the judge and delivered to the plan administrator for the 401(k). The administrator then has to approve the order (they frequently don’t unless you use their forms) and it then the order needs to be rewritten and resubmitted. The entire process sometimes takes many months.
So, if there is a problem such as one of the ones described above (and there are plenty more, these are simply the most common), then can it be fixed. The answer to that is “maybe.” The Texas Family Code provides for enforcing the decree. It also provides, however, for certain statutes of limitation for filing to recover property. For example, to recover tangible personal property, you have to file to recover it within two years. There are other limitations, but the important thing to remember is that it is best to immediately collect your property; waiting could cause you to lose it.
Obtaining a qualified domestic relations order as described above has its own set of rules and must be followed precisely. It is important to obtain these as soon as possible because there have been cases where the other party drained the account and there was nothing left to get.
And property that was not divided at all has still another set of rules and limitations.
Finishing a divorce does not happen with just the decree. The language in the decree and the other documents that need to be signed are as important as the actual award. Without taking care of all of these matters, you might not “get” what you “got.”
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