When I meet with potential new clients many of them come to me with preconceived ideas on how property is divided in a Texas Divorce. There are many myths floating around on how property is divided this article discusses some of those myths.
Divorce Can be Denied
This is not the most popular myth I hear. However, there is some confusion on this issue. It usually comes in two forms either:
- I will not give my ex a divorce or
- My ex says they will not me a divorce
Usually, the way I address this myth with consults is by telling them “If your ex wants a divorce ultimately that will happen. However, if one of you wants to delay the process they can. I can get you divorced as fast as the slowest person in the relationship.” You can read more about this topic in our article What does Insupportability or No-Fault in a Texas Divorce Mean?
Fault is Necessary to Get a Divorce
This is a variation on the above myth. At one time in Texas fault was a necessary component in order to get a divorce. However, it is no longer necessary to plead fault in a divorce. You can read more about this topic in our article What does Insupportability or No-Fault in a Texas Divorce Mean?
My Children Get to Pick Where and Who They Live With
This is one of the most common myths I hear from clients and potential clients. I also hear several variations on this myth. Some of the variations include:
- My child is twelve so they can decide where they live
- My child is 15 so they can decide where they live
- My child is boy so they can decide to live with the father if they want
- My child is girl so they can decide to live with their mother if they want
The truth is children do not get to decide who they live with in Texas. The magic age when a child can decide who they live is 18. The only reason age 12 matters in regards to a child is that age a parent can request that the Judge interview a child and a Judge must interview the child. However, the Judge gets to decide what weight he puts on what he learns from the child. You can read more about this topic in my blog post When Can a Minor Child Weigh in on Custody Decisions in Texas?
My Children Can Choose Not to Visit with the Other Parent
This is a variation on the above myth. A child does not get decide what sort of visitation they have with a parent. Until the child turns 18 parents must follow the language in their court order regarding visitation. You can read more about this topic in my blog post Does my 18 year old child still have to go with their other parent on the weekend for court ordered visitation in Texas?
We are Common Law Married because We Live Together
No, you are not common law married solely because you live together. In Texas three elements must be present to form a Common Law Marriage:
- First, you must have “agreed to be married.”
- Second, you must have “held yourselves out” as husband and wife.
- Third, you must have lived together in this state as husband and wife.
I can Get a Common Law Divorce
There is no such thing as a common law divorce. If there is a valid marriage in order to be divorced, you must go through the same divorce process as everyone else.
For more information on this topic you may want to read our blog article “How to get a Common Law Divorce in Spring, Texas.”
Joint Custody Means 50/50 Time with the Children
False and False. First Texas does not have custody we have conservatorship. Second, Conservatorship has more do with rights you are entitled to as a parent then it is to with how much time you have with your child.
Texas Family Code Section 153.135 states that Joint managing conservatorshipdoes not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the joint conservators.”
For more information on this topic you may want to read our blog article “Joint Managing Conservators in a Child Custody Case in Texas.”
If I have Joint Custody or equal the Time I won’t Have to Pay Child Support
False and False. As stated above Texas does not have custody we have conservatorship.
Texas Family Code Section 153.138 states that, “The appointment of joint managing conservators does not impair or limit the authority of the court to order a joint managing conservator to pay child support to another joint managing conservator.”
The Court will always care more about the best interest of then children than what either party thinks is "fair." So it is entirely up to the trial court judge to decide who, if anyone, will pay child support, and what that amount will be.
In Texas Property is divided 50/50
One of the most common misconception about property division I hear is that property is divided 50/50. Many couples believe the courts will just split all their assets in half, including the marital home, however that is not necessary what an equitable distribution means.
Often times splitting assets 50/50 is what happens through negotiations and agreement. However, the standard that a court is held to when dividing assets under the Texas Family Code in Section 7.002 is “…the court shall order a division of the following real and personal property, wherever situated, in a manner that the court deems just and right…” There are a number of factors a court may consider when deciding how to divide property including but not limited to:
- Fault in the breakup of the marriage;
- Fraud on the community estate
- Disparity of earning power of the spouses and their ability to support themselves;
- Health of the spouse;
- Education and future employability of the spouses;
- Community indebtedness and liabilities;
- Tax consequences of the division property;
- Ages of the spouses;
- Earning power, business opportunities, capacities, and abilities of the spouses;
- Need for future support;
- Nature of the property involved in the division;
- Wasting of community assets by the spouses;
- Credit for temporary support paid by a spouse;
- Community funds used to purpose out-of-state property;
- Gifts to or by a spouse during the marriage;
- Increase in values of separate property through community effort by time, talent, labor, and effort;
- Expected inheritance of a spouse;
- Attorney’s fees to be paid;
- Creation of Community property through the use of a spouse’s separate estate;
- The size and nature of the separate estates of the spouses;
- Creation of community property by efforts or lack thereof of the spouses;
- Actual fraud committed by a spouse
- Constructive fraud committed by a spouse;
If I Committed Adultery I Will Lose Everything
I hear this one a lot. Either a spouse comes to a consult because:
- they are scared because their ex has told them you will never see your kids again and you are going to get nothing in the divorce and I am going to let everyone know you are a cheater.
- Alternatively, a spouse they think that because their ex cheater on them they have the winning ticket to get everything they want out of the divorce.
In both scenarios that is probably not the case. First, Texas law defines adultery differently then what many probably would consider infidelity. Generally, if adultery can be proven usually all it gets the spouse who did not commit adultery a larger portion of the stuff. For example, instead of a 50/50 split maybe it is a 60/40 split.
Usually, it does not equate to having anything to with custody or spousal support. To read more on this topic you can read our article on When is, Cheating Considered Adultery in a Texas Divorce?
All assets are community property
Another myth that some couples believe is that all assets owned during the marriage is community property. Although under Section 3.003 of the Texas Family Code the presumption is that all property possessed by either spouse is community property, some property might in fact be separate property in a Texas Divorce.
In order for a spouse to protect property from being considered community, a spouse must be able to provide evidence that said property was acquired before a couple married, or received as a gift or inheritance after they were married.
For more information on this topic you may want to read our blog article “His, Hers, and Ours – Texas Divorce.”
If the Property is Just in My Name, it is Separate Property
False, putting your name on something does not make it just yours in a Texas Divorce. All property possessed by either party at the time of divorce in Texas is presumed to be community, and it is the burden of the party claiming that something is separate to prove, by clear and convincing evidence, that the property is actually separate.
I earned it so it is my separate property
False, all income earned during marriage by either party is community property. That includes money from retirement benefits as well. Contributions to a 401(k) or IRA during marriage, whether made by you or your employer, belong to the community estate.
Texas is a non-alimony state
In many marriages, one spouse earns more than the other and they often don’t realize that their income is not solely their own and might be subject to division during or after a divorce. When a judge is tasked with dividing a couple’s assets they may look to the spouse’s income when considering Temporary and Post-Divorce Support if certain eligibility requirements are met.
For more information on this subject you may want to read our blog article, “Spousal Support, Spousal Maintenance, and Alimony in Spring and Houston Texas and when is it available?”
Businesses are not marital property
Some couples believe that businesses are not marital property in a divorce, this is also a common myth. The reality of the situation is that any business or partnership acquired during a marriage can be considered community property.
It can be divided and split but with an experienced Texas divorce attorney on your side you might be able to shield your business from being split up in divorce.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- 6 things You Need to Know Before You File for Divorce in Texas
- I Want a Texas Divorce but My Husband Doesn't: What can I do?
- Am I Married? - Marital Status in Texas
- Can I sue my spouse's mistress in Texas?
- 6 Tips - On How to prepare for a Texas Divorce
- Roadmap of Basic Divorce Procedure in Texas
- Child Custody Basics in Texas
- 6 Mistakes that can Destroy Your Texas Divorce Case
- 10 Quick Tips About Parental Visitation
- Does it Matter who Files First in a Texas Divorce?
Law Office of Bryan Fagan | Spring, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Spring, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Spring, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.