LEGAL RESOURCES
Guns and Divorce
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Firearms Are Frequently a Source of Conflict During Divorce
Texas has one of the highest rates of firearm ownership in the country. It is not uncommon for one or both spouses to own handguns, hunting rifles, shotguns, collectible firearms, or firearms used for recreational shooting or self-defense.
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When a marriage begins to break down, however, firearms often become one of the most emotionally charged issues in the case. Concerns about personal safety, access to the marital residence, ownership of valuable collections, and allegations of threatening behavior frequently arise at the same time.
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Although emotions may be running high, decisions involving firearms should be made carefully and with a clear understanding of both the law and any court orders that may apply.
Firearms Are Property Subject to Division
Like other marital assets, firearms may be either community property or separate property.
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A firearm purchased during the marriage is generally presumed to be community property unless a spouse proves otherwise. A firearm owned before marriage, received as a gift, or inherited may constitute separate property if its separate character can be established under the Texas Family Code.
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Some firearms also have substantial monetary value. Hunting rifles, collectible firearms, antique weapons, and National Firearms Act items may require appraisal before the parties can fairly divide the marital estate.
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Ownership should therefore be evaluated as part of the overall property division rather than treated as an isolated issue.
Do Not Hide, Move, Sell, or Dispose of Firearms During the Divorce
Once a divorce has been filed, many counties in Texas have standing orders or temporary restraining orders that prohibit either spouse from concealing, transferring, selling, damaging, or disposing of community property except in the ordinary course of business or for reasonable living expenses.
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Those restrictions often apply to firearms just as they apply to bank accounts, vehicles, jewelry, or other marital assets.
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Attempting to hide firearms, move them to an undisclosed location, transfer them to friends or relatives, sell them, or otherwise place them beyond the reach of the court can create significant legal problems. If the firearms are community property, the court expects them to remain available for inventory, valuation, and ultimate division in the divorce.
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If there are legitimate concerns regarding the safe storage of firearms during the litigation, those concerns should be addressed through the attorneys or by requesting appropriate temporary orders from the court rather than through unilateral action.
Firearms Should Be Listed on the Inventory
Texas divorce cases frequently require each party to prepare an inventory and appraisement identifying the assets and debts that make up the marital estate.
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Firearms should generally be included in that inventory just as other valuable personal property would be. The inventory should identify the firearms with sufficient detail to allow the parties and the court to determine ownership and value. Keeping accurate records also helps prevent later disputes regarding whether firearms have disappeared or been transferred during the litigation.
The Presence of Firearms Alone Does Not Determine Custody
Parents are often surprised to learn that simply owning firearms does not prevent a parent from exercising custody or possession.
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Texas courts recognize that many responsible parents lawfully own firearms for hunting, sport shooting, collecting, ranching, or personal protection. Firearm ownership, standing alone, does not establish that a child is in danger or that a parent should lose conservatorship or possession rights.
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Judges focus on the evidence presented, not assumptions based solely on firearm ownership.
Courts Look for Evidence of an Actual Threat
When firearms become an issue in a custody case, the court generally looks for evidence of an actual threat of violence, reckless behavior, unlawful use of firearms, or conduct creating a genuine risk to the child or another family member.
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Evidence that may become relevant includes threats involving a firearm, acts of family violence, brandishing a weapon during an argument, unsafe storage that places a child at risk, criminal conduct involving firearms, violations of protective orders, or other facts demonstrating that possession of firearms creates a legitimate safety concern.
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The mere presence of firearms in the home, without additional evidence, is ordinarily insufficient to justify restricting a parent’s custody or possession rights.
Family Violence Changes the Analysis
Cases involving family violence are different.
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When credible evidence establishes family violence, the court has broad authority to issue orders protecting the victim and the child. Depending upon the circumstances, the court may issue a protective order, require supervised visitation, restrict possession, prohibit contact, or impose other conditions necessary to protect the child’s physical safety and emotional well-being.
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Federal law may also prohibit certain individuals who are subject to qualifying protective orders or convicted of qualifying domestic violence offenses from possessing firearms. Those issues extend beyond the division of property and may have significant legal consequences.
Safety Concerns Should Be Raised Immediately
If you believe a firearm has been used to threaten you or your child, or you have reason to believe that someone is in immediate danger, the issue should be addressed promptly through appropriate legal channels. Depending upon the circumstances, emergency relief, temporary orders, or a protective order may be available.
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Courts take credible threats of violence extremely seriously. The evidence presented, however, should focus on specific conduct, documented threats, or other objective facts demonstrating that intervention is necessary.
Fergus & Tomanka Represents Clients in Divorce Cases Involving Firearms
Firearms often involve both property rights and personal safety concerns. Whether the issue involves ownership of valuable firearms, allegations of threatening behavior, requests for protective orders, or disputes regarding community property, careful legal guidance is essential.
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At Fergus & Tomanka, we represent clients throughout Central Texas in divorce and custody cases involving complex property division, temporary orders, family violence, and high-conflict litigation. We help clients protect their legal rights while ensuring that legitimate safety concerns are presented to the court through admissible evidence and appropriate legal procedures.
Call (512) 291-6952 to setup a consultation with one of our attorneys OR simply Make An Appointment on your own!
These issues can be quite difficult to handle on your own due to the legal complexity and emotionally-charged nature of the proceedings. It’s best to consult with an experienced family law attorney in your area.