Unless you and your spouse have resolved all issues in a divorce, your divorce will more than likely be considered "contested". If your case is contested and goes to a court the Judge will make decisions regarding dividing the marital property and debts. The following information will help you determine what to expect when preparing your case for court.
Community Property in Texas
One of the first things I do in all my consults with potential clients is start educating what it means for Texas to be a community property state. On its most basic level the general rule regarding community property is that anything you have accumulated from the time you are married until the day you are divorce is part of the marital estate.
An example, would be if you and your spouse purchased a home after you were married than that home would be considered community property. For some potential clients and clients this can be either a relief or cause for grief.
For those frustrated by the news they generally tell me something along the lines that it is not fair because “only their money” had been used to pay for the house. However, Texas does not look at it that way. Texas considers all money earned during the marriage no matter whose efforts have been used to make that money as being marital money.
Separate Property in Texas
If property is separate than it means that it is not subject to division during a divorce, while community property is subject to a “just and right” division.
Exceptions to the general rule that all owned by spouses is community property include:
- Property owned prior to the marriage
- Inheritance and
Separate property issues can be complex and it is best to have the help of a Houston Divorce lawyer to help examine and sort them out. This can either involve:
- Attacking whether property is separate or
- Helping to protect property as being spate and not community
The Texas Just and Right Division
One of the myths regarding diving property in Texas is that it is 50/50. However, the standard for dividing property during a divorce is a “just and right division.” This means it may be 50/50 however it might not under every circumstance.
What I tell many of my clients is that every case is different. I never have the same facts or people in every case. You may have similar facts and different people and get different results. I have seen everything from a 50/50 split to a 70/30 split.
You can find the language regarding property division in the Texas Family Code Section 7.001:
General Rule of Property Division
“In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”
Generally, when a court is deciding whether to award an unequal division of property the court will consider:
- The length of the marriage;
- Each spouse’s level of educational;
- Future business opportunities and
- employability of each spouse,
- The disparity in earning capacities or income;
- Each spouse’s health and physical condition;
- Each spouse’s financial conditions and
- Disparity in the ages of the spouses;
- The existence and size of each spouse’s
- separate estate;
- The nature of the property being divided,
- including liquidity, income production and
- possible tax consequences;
- The existence of children of the marriage;
- Benefits the party not at fault would have
- derived from the continuation of the marriage;
- Fault in the breakup of the marriage,
- including claims of fraud on the community;
- Expenses paid to maintain the community
- estate during the pendency of the case;
- Temporary spousal support paid during the pendency of the case; and
- Attorney’s fees and costs incurred during the litigation
Identify the Marital Assets
The court can award all types of property no matter whose name is on it including:
- Retirement accounts
- Bank Accounts
- Real or personal property and
- Any other property that was acquired during the marriage
One of the tools your Houston divorce lawyer will help you prepare is an Inventory and Appraisement of all community and separate property. This will aid in:
- identifying property and
- characterizing the property as either community or separate.
It is required by the court should the case go to trial or and is also a useful tool during negotiations in mediation.
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”
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Other Articles you may be interested in:
- Dividing Property in a Texas Divorce - The Just and Right Division
- Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?
- What Wikipedia Can’t Tell you About Texas Divorce and Marital Property Division
- Texas Divorce Property Division Enforcement
- Separate Property in a Texas Divorce?
- Does it Matter Whose Name is on Title or Deed of Property in a Divorce in Texas?
- Is Social Security Considered Separate Property in a Texas Divorce
- Business Owners and Business Assets in a Texas Divorce
- What to do when your divorce decree does not include a marital asset?
- High Net Worth Divorce / High Asset Divorce
- What does Insupportability or No-Fault in a Texas Divorce Mean?
- Can I buy a House During My Texas Divorce?