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How the Judge Divides Assets — Will We Have to Sell Everything?

This is another in a series of common questions from clients. The answer is “NO”. Many clients ask if the Judge will make them sell everything and then split the money. Sometimes one party will threaten the other with asking the Judge to sell everything. That's usually done to scare or intimidate the other party who may not have been as compliant as the spouse wants. Sometimes it's suggested out of frustration when the other party is stubborn and unreasonable (imagine that happening in a divorce!). Sometimes it is just a bully's threat. Sometimes people have been told by family or friends that it will happen. Theoretically, the Judge could order things sold, but I have never seen it in over 30 years of divorce work. There are some obvious reasons why it doesn't happen:

1. It's too much trouble. Imagine a giant, comprehensive garage sale or auction. It would be unmanageable. There would be no one to run the sale and make sure it was all done honestly. It would require a lot of people to work the sale. Such a sale would undoubtedly take a long time and would probably delay the divorce.

2. There would be little return for the sale of used things. The cost of replacement would greatly exceed the gain from the sale. There might not be a market for a lot of things, and some things would be “priceless”, as they say on the commercial. Some things would probably have a negative value. There could be tax consequences from the sale of some assets and a court is not likely to knowingly set up that problem.

3. In Texas, the Court is required to make a division of property that is “just and right”. It is hard to conceive of any judge thinking selling everything would result in a just and right division. The most common means for dividing property is by agreement. Most cases are settled by agreement. Negotiations occur almost constantly while a case is pending, unless one party literally refuses to discuss settlement or takes an unyielding, extreme position that makes settlement impossible. Probably 90–95% of cases settle before trial. If informal negotiations are unproductive, mediation is a highly effective settlement method that is used all the time. One way or another, the parties usually reach agreement on property agreement. So don't worry if your spouse threatens to have everything sold. It ain't gonna happen!