Back in 2010 we spoke to divorce lawyer Richard Orsinger of McCurley Orsinger McCurley Nelson & Downing for that year’s edition of Texas Super Lawyers. In the interview, we asked him to describe a particularly challenging type of case he regularly handles in his practice. This is what he told us, which didn’t make it into the article.
One case in Texas that can last a long period of time is where you have people that have separate property as well as community property. This can occur because people are wealthy when they marry, or because it’s the second or third marriage and they acquired a bunch of property before they got married. Or it could be that somebody inherited a bunch of property because an aunt or a mother or a grandmother died during marriage. If that inherited property is real stable, like an interest in the family ranch, and it never goes anywhere, that’s pretty easy to figure out. But if there’s cash, separate property cash, that came in and it’s been mixed up in purchases and it’s been put into homes or paid credit card debt or improvements on land or used to mix with community to buy stocks and bonds, that can get tricky. If the person who owns the separate property doesn’t make an effort to go in and straighten where their separate property went, it’s going to be hopelessly comingled. The burden of proof of separate property is clear and convincing evidence, so where you have separate property cash flows, that have mixed with community property cash flows over a period of 10 years, 20 years, then you have an enormous accounting job if the person that owns the separate property doesn’t want to just give it up and walk away and treat it all as community. So you have to go out and hire forensic CPAs and they have to create these electronic spreadsheets and they have to go and track down all of your old accounting records and all of your checks and your checkbook statements and your brokerage account statements and they have to enter all these on the spreadsheets and they have to follow these cash flows in and out of the account using what we call tracing rules, which are of themselves controversial. You can select some and not others and some say some are valid and others say the same ones are not valid. It can take months to gather the data, to create a re-creation of the deposits and the withdrawals from the length of the marriage. And it can take months to actually get those spreadsheets to where they function in a way where you can say how much was paid to buy that piece of real estate and how much was paid to buy that IBM stock. Those kind of cases, depending on how much cash flow there was, how many accounts there were, and how long it goes on, can easily last over a year. And it’s not that the lawyers are doing the delaying. It’s the process of getting the information to prove the separate property claim and then actually doing the work. It is so time-consuming and there are inherent delays associated with getting the underlying data. Those kind of cases can be quite lengthy.