Arguments over money are leading factors in divorce so it stands to reason that how assets and debts are divided can be emotionally charged.
Property division in Texas divorce can be complicated. Assets and debts are categorized as either community property or separate property. Only community property is subject to division, and each spouse keeps their separate property.
Our team at the Law Offices of Mark M. Childress, PLLC prioritizes safeguarding your rights to property and other divorce terms.
Separate Property vs. Community Property in Texas
The award of marital property is outlined in Texas law. While most states follow the rules of equitable distribution, the Lone Star State is not alone in using community property rules. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Washington, and Wisconsin similarly divide property in a divorce.
In a marriage, Texas law defines property as either community or separate. A general explanation is any property owned by the person before the marriage is separate property. Property acquired during the marriage is community property. The court presumes property is community unless and until one spouse demonstrates by a preponderance of the evidence that the asset is separate property.
Separate property examples include the following:
- Furniture you had before getting married
- A condo you owned prior to marriage
- Income that you earned/saved before tying the knot
- The car you bought before getting married
- Any retirement contributions made before the union
The law allows specific assets acquired during a marriage to be categorized as separate property:
- Personal injury settlement involving one spouse
- Gifts that one spouse gave to the other
- An inheritance bequeathed to one spouse
Longer marriages are particularly vulnerable to co-mingling of property. Formerly separate can become community property that can be divided.
Factors Considered in Dividing Community Property
When property division is decided by a judge, the decision is not made in a vacuum. Because community property is equally owned by both spouses, the property is often split 50/50. Texas law gives judges the authority to award an uneven division if doing so is “just and right” in that case, such as when one spouse purposely attempts to minimize what is considered community property.
The court can consider the following factors in dividing community property:
- Fault in the dissolution of the marriage
- Health of each spouse
- Earning potential of each spouse
- Custody of the children
The court will also follow any property designations included in a prenuptial agreement unless the judge determines the prenup is grossly unfair.
The Discovery Process
Not all divorces with property disputes end up in court. Collaborative divorce and traditional negotiation are options to reach a divorce agreement. The process includes what is called discovery, where each side is responsible for fully divulging their assets and liabilities. Safe deposit boxes, collections, and other valuables are open to inspection.
Forensic accountants and other professionals can be utilized if there is reason to suspect a spouse is concealing assets. How property and debt are appraised and categorized are part of the negotiation process.
Fair Property Division Begins with Experienced Legal Counsel
Having solid financial footing to begin single life after a divorce is important. Property division plays a critical role in resolving some of the uncertainty of the future. Our team is dedicated to helping our clients achieve their divorce goals and peace of mind.
Schedule a consultation with The Law Offices of Mark M. Childress, PLLC to understand how community property rules impact your divorce. Contact us at (817) 497-8148 or use our online form to schedule your consultation.