In property division, there are also a lot of misconceptions and outright falsehoods that people talk about regarding this subject. There’s a common misconception that property division in Texas divorce cases always results in both spouses receiving equal shares. While this may be the result of your case that does not necessarily have to be true. Whether property will be divided down the middle or in a different fashion will depend on factors such as the fault of either spouse in the breakup of the marriage, your ages, your education, your work prospects, and the amount of separate property that either of you owns.

Navigating Contentious Property Division in Divorce

Dividing property in your divorce tends to be a topic that becomes quite contentious. You and your spouse may hold differing views on your property. This includes what property is included in your community and separate estates. Often, this discussion becomes complicated because each of you may have valid arguments about where certain property belongs. When both of you have valid arguments, you may end up going before a judge to serve as a tiebreaker.

The Texas family code guides you and your spouse through the process of property division in your divorce. Family law relies heavily on the specific facts and circumstances of your case. This means that while the Texas family code guides property division, the judge’s experiences and your specific circumstances heavily influence the final decisions. Given the uniqueness of each family’s situation, it’s impossible to predict your exact experience with property division in your divorce.

Divorce Insights: Consult Our Attorneys

For that reason, I would recommend that after reading today’s blog post you contact the Law Office of Bryan Fagan. Set up a free of charge consultation with one of our experienced family law attorneys. Our lawyers can guide you through the divorce process from an experienced attorney’s perspective. We can give you information about divorce and help you to see how it may apply to your case. 

From there, you may decide to hire our office to represent you in your divorce case. That’s the direction you’re heading. It’s where you can collaborate to develop a tailored plan for your case and receive personalized advice about your situation. Accessing practical and useful guidance relevant to your circumstances is crucial in a family law case. Having an attorney to assist you can enhance any situation in your divorce, whether it involves children, property, or both.

Although it may not feel like it, your divorce will come to an end. As your divorce concludes, you will be compelled to consider the remaining years of your life. A divorce is a great opportunity for you to create a plan for your life as a single adult. The more diligent you are in preparing for your divorce the more secure and vibrant your future can be. One of the most productive steps you can take to prepare for your divorce case is to hire one of the attorneys from the Law Office of Bryan Fagan.

Is all property owned by you and your spouse going to be split down the middle? 

As we mentioned a moment ago, one of the great misconceptions and falsehoods that we hear about divorce in Texas is that a family court judge will always divide property down the middle because Texas is a community property state. It is true that Texas is a community property state which encourages the equitable distribution of property. However, that does not mean that the same circumstances will the true for your case. Equitable distribution entails dividing property fairly based on the circumstances and facts of your case. This doesn’t necessarily imply that your property will be divided equally between you and your spouse.

As we just finished talking about, Texas is a community property state. Community property is subject to division by a family court judge in a divorce. This is a very important subject. So, it is important to talk a little bit about the nature of Community property in a Texas divorce. At the time of your divorce, it is presumed that all property owned by you and your spouse is community-owned. Property owned by either you or your spouse before your marriage is presumed under the law to be separate property. Additionally, if you or your spouse acquire property during your marriage either by gift or inheritance then that property will be separate and is not divisible in your divorce case.

Understanding Property Division in Texas Divorce

The specific standard that a judge will use to divide property in your divorce is a just and right division. A just and right division means that fairness is more of the aim for the family court judge than equal division. Sometimes equal is not fair being fair does not mean dividing property equally. The factors that we listed earlier in today’s blog post: your ages, your education levels your employment situation, and your physical health will all play into this Justin right division of your property. One of the important factors to consider is that most of this is already determined before your divorce. It is not as if you can change most of these factors once your case is filed. For that reason, you can begin to start thinking about how these factors will impact you and your spouse should you go through with a divorce in Texas.

For example, if you have always been the spouse who worked outside the home, earning a substantial amount of income, and has a high level of education then these will be factors that may influence a family court judge to divide property such that your spouse ends up with more Community property than you do. This is especially true if you’re spouse has never worked outside the home, has a relatively modest amount of separate property, and has no education beyond high school. Taken into comparison against the property that you own and your level of education then you may find that you end up with less Community property after the divorce than your spouse does.

What about inheritances? How are they treated in a divorce?

Inheritances are treated as separate property under Texas law. This means that the inheritance that you or your spouse receive during your marriage is not subject to division by a family court judge. However, one thing that you need to be aware of is that if the property that you inherit is then mixed or commingled with community property then the separate property nature of the inheritance could be lost. This means that the property could become community property and then be subject to the division after all. This could happen, for example, if that separate property inheritance is deposited into a checking account where your and your spouse’s income is kept. 

Also, the separate property designation of the inheritance may be lost just due to the passage of time. Imagine a situation where you inherited $20,000 from a relative who passed away during your marriage. That inheritance could be deposited into a bank account like the one I mentioned a moment ago that is jointly held with your spouse. If many years pass, then it would become more difficult for you to determine whether the property is still separate or would have changed into community property due to the passage of time. 

Understanding Community Property Income

Another interesting aspect of this discussion concerns how separate property can generate community property income due to interest growth. For example, let’s suppose that your separate property inheritance was invested and grew due to interest that has gained over the years. This growth on the initial investment (principal) would count as community property but the initial investment itself would still count as separate property. This example also illustrates just how complex community property division can get. Having an experienced family law attorney with the Law Office of Bryan Fagan by your side can help you when the going gets tough. 

Another aspect of this discussion involves the hiring of a forensic accountant or other “expert” in the field of researching financial transactions. It would be entirely conceivable for the property to become an issue in your divorce. You may believe that the property in its entirety is separate. After all, isn’t the principal separate property inheritance. Your spouse, on the other hand, may contend that the property has been commingled. Or it has lost its separate property nature and is thus divisible in the divorce. We’ve observed how seemingly straightforward situations can become significantly more complicated over time and with the mingling of funds. Being prepared in this regard is crucial to ensuring you retain what is rightfully yours and that property is correctly classified in your Texas divorce.

Protecting an inheritance in your Texas divorce

I think it is important to note that the above examples that we ran through truly are straightforward. I wanted to give you an example of how inheritances can get tricky even in mundane situations. It’s not difficult to imagine finding yourself in a situation where either of the scenarios I outlined could occur. In a divorce, you have rights regarding your property, but those rights are meaningless if you don’t assert them. The worst thing you can do is assume defeat and not fight for what you believe is fair. When faced with an overbearing spouse and an aggressive attorney on the other side, this reality may become unavoidable.

Protecting Your Inheritance in Divorce

As a result, if you have received or plan on receiving an inheritance then you should begin to work towards taking steps to protect that property in the event of a divorce. While there is not much you can do as far as offensive measures to protect this property there are defensive measures you should be aware of. What can you do to avoid putting your money into a situation where its separate property nature may be lost? Read on to find out more. 

You should aim to put away that separate property inheritance and keep it out of the general usage for family expenses. This is tough, I know. That inheritance may be needed to pay bills, update items, or even make essential repairs on the home. There is nothing wrong with using the money as an account for this type of use. However, be aware that once you start to use the money in this way there are arguments to be made by your spouse that the money no longer counts as separate property. Using the money to pay debts in your marriage is another example of a community property use of these inheritance funds. 

Protecting Inheritance: Beware of Commingling Funds

The opposite may also occur where you have a bank account opened specifically for the inheritance. For years you may have left the money alone and contributed nothing further to that account. However, if you begin to deposit community property funds into that account then it is likely that the entirety of the account would be classified as community property as a result. Again, there is nothing wrong with doing this if it is the wishes of you and your spouse that this occurs. However, if you want to maintain the separate property nature of the inheritance then you should not deposit community funds into that account. 

Finally, consider a situation where instead of inheriting money from a deceased relative, you inherit real property. That vacation home on Lake Conroe that you inherited may have started as separate property, but it can quickly be lost to the community estate. The most straightforward way for this to occur is if you use community income to pay for expenses, taxes, and other costs associated with owning the home. The home could become part of the community estate as a result, or at the very least, your spouse may ask for the community estate to be reimbursed due to the funds utilized to improve or maintain the separate property inheritance.

Importance of Record-Keeping for Inheritance

You should aim to keep a record of all transactions regarding the inheritance. This can become tedious and seem to be more trouble than it is worth much the time. However, if you genuinely want to ensure that this inheritance remains separate property, you should take proactive steps. This could involve something as straightforward as controlling which funds are deposited into a bank account holding the inheritance. Your bank, credit union, or other financial institution where you have an account should be able to keep online records. However, the bank may maintain records only for a few years at a time so please be sure to take advantage of the online records while they are available. Print out the records or keep a PDF version of deposits/withdrawals on your desktop. 

Still, have questions? I don’t blame you! This is not intended to cover all issues related to divorce in Texas and inheritance funds. To find out more about your situation cHowever, if you genuinely want to ensure that this inheritance remains separate property, you should take proactive steps. This could involve something as straightforward as managing which funds are deposited into a bank account holding the inheritance.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family’s circumstances may be impacted by the filing of a divorce or child custody case. 

Other Related Articles:

1. Can My Wife Take My Inheritance In a Divorce in Texas?
2. Who Inherits Separate Property in Texas?
3. Inheritance Laws in Texas: What Happens Without a Will?
4. Adult Adoption in Texas: Why, When and How does it affect inheritance?
5. Can My Ex Inherit My Assets?
6. Can You Divorce Without Splitting Assets in Texas?
7. How Do I Prove Separate Property in a Divorce in Texas?
8. The Impact of Divorce on estate planning in Texas
9. How Can Retirement Get Split in a Divorce?
10. What is A Husband Entitled To in a Divorce in Texas?

Frequently Asked Questions

How do I protect my inheritance from divorce in Texas?

In Texas, inheritance is generally considered separate property if the individual keeps it separate from community property. To protect your inheritance, consider keeping it in a separate account. Do not commingle it with marital assets, and consulting with legal experts for guidance.

How long do you have to be married to get half of everything in Texas?

Texas follows community property rules, but it doesn’t necessarily mean everything is split exactly in half. The length of marriage is just one factor among many that may influence property division. The process is more about achieving an equitable distribution based on various circumstances.

Can ex wife claim inheritance after divorce in Texas?

Typically, inheritance received after the divorce is considered separate property and may not be subject to division. However, if the inheritance becomes commingled with marital assets or benefits both spouses, it could potentially be up for discussion during property division.

What is a wife entitled to in a divorce in Texas?

In Texas, property division operates on community property principles. This means that both spouses generally have a right to an equitable share of community property. This encompasses assets acquired during the marriage. Factors like financial contributions, earning capacity, and child custody arrangements also play a role.