Three Key Considerations for Texas Gun Owners in Divorce
by Fred Adams
The Second Amendment gives U.S. citizens the right to gun ownership, and Texans are among the most likely to take advantage of this. Texas has the highest number of guns in the country, according to statistics from the Bureau of Alcohol, Tobacco and Firearms (ATF).
So, it’s not uncommon in Texas divorce cases for firearms to be a factor, whether in estate valuation, asset division, protective orders and other aspects of family law. This post looks at three important aspects of the law that gun owners facing divorce should know.
Your Temporary Orders May Prohibit Gun Possession
Many Texas divorces start with standard “Temporary Orders” or “Standing Orders,” which govern various behaviors during the divorce process. These vary by circumstance and by county and can include orders for important day-to-day things, such as who will live in the house, who will pay what bills and who will have custody of the children.
These standard orders might also include directives against stalking, threatening and other forms of domestic abuse or violence, and this is where it gets tricky for gun owners. If you are subject to any orders prohibiting the threat or use of physical force, then U.S. law prohibits you from being in possession of a firearm or ammunition.
Many gun owners have accepted these standard orders without understanding the full ramifications. If your orders include any prohibitions regarding the use of physical force, you must immediately and safely dispose of your firearms until after your divorce has been finalized.
You Might Have to Buy Your Gun Twice
If you own one or more firearms that you purchased during your marriage, those guns are likely going to be considered community property and could be awarded to either spouse in a just and right division of assets. To keep “your” gun, you may have to agree to a settlement that gives your spouse assets of equivalent value.
If your spouse is the gun aficionado in your marriage, you should consider having any firearms appraised before agreeing to a valuation. The value of a gun rises and falls over the years, and certain antique guns can be of great value to collectors. Parker Shotguns haven’t been made for more than 70 years, so the supply is limited. These vintage firearms can sell for as much as $12,000 at auction.
Approximate gun values can be found on websites such as gunbrokers.com and there are appraisers available as well. There are several books on gun values published for a reference guide.
If there are optics on the firearm, be sure to value them, as some scopes can be more valuable than the rifles they sit upon.
Class 3 Weapons Cannot Be as Easily Transferred as Other Property
The National Firearms Act of 1934 (NFA) regulates the sale and ownership of certain weapons, including machine guns and short-barreled rifles or shotguns, as well as suppressors or “silencers.” One restriction on this class of weapon is that only one person is allowed to possess the firearm. It may be considered marital property from the standpoint of valuation, but it cannot be transferred to the non-registered spouse without first jumping through a few hoops with the ATF. Further, ATF regulations prohibit many people from owning or possessing one of the weapons, so some spouses may never qualify for ownership of an NFA weapon.
There are many state and federal laws that regulate gun ownership – it’s critically important that a gun owner discuss them with their family law attorney as part of a divorce. Working with a lawyer who understands the ins and outs of gun ownership will prevent potential headaches or prosecution.
There are several states where, even though authorized by United States law, possession of a class 3 weapon is unlawful.
If the weapons are owned by a gun trust, then multiple persons named in the trust may lawfully possess a class 3 weapon.
It can take more than six months to process the paperwork with the ATF to transfer a class 3 weapon.
Violation of any of the Federal Firearms Laws mentioned here would be a federal felony.
In a divorce situation where there are significant firearms assets or class 3 weapons, it is imperative not only to find a good family law lawyer but one that is conversant with Firearms Law.