Whether you’re a little kid on Christmas morning or a grown person going through a divorce, the big question is when it’s all said and done what are you going to end up with. Under the Christmas tree, or under a court’s order what is yours to keep?
Outside of issues surrounding your personal finances, children, upset emotions and a feeling that your world is no longer what it used to be understanding what you stand to keep and what you stand to lose in the property division of your divorce is a crucial question to ask.
What exactly should you count as property?
You’ve heard the term from your friends, your family and now more recently your lawyer. Property. Does your toothbrush count as property? What about that ranch you inherited from your Aunt Mildred? In short, property includes all of these items. Your home, your vehicles, your business and any assets of your business are liable to be divided up in a divorce.
Those are just the sort of tangible property that is subject to division. Bank accounts ,investments, life insurance, retirement accounts and other property that can be worth a substantial amount of money but that is not something you can wrap your arms around is also subject to being divided up between you and your spouse. My point is that the list of what counts as property is virtually limitless.
How does Texas categorize your property in a divorce?
Texas is what’s known as a community property state. The two categories that you will become keenly aware of are separate and community property.
Separate property
Separate property is any property that you have acquired before marriage. This means inherited property, both during the marriage and before the marriage, is considered to be your or your spouse’s separate property. Additionally, any property that you owned as your sole property from before the marriage is also separate property under state law. A gift made solely to you or solely to your spouse is separate property that can be difficult to prove.
You must look to the intent of the gift giver to help determine how the property is quantified. Often times a “wedding gift” will be intended for both you and your spouse, but that won’t stop one of you from trying to prove that Aunt Mildred really wanted you to have the gift and not your spouse. Finally, if you were injured in an accident and received a settlement check from an insurance company that money is your separate property as well.
Community property
Community property, by definition, is every other kind of property. I say “by definition” because the law states that there is a presumption that all property is presumed to be community property absent proof to show that the property is actually your or your spouse’s separate property.
I have had many clients attempt to make the argument that because the house has only their name on the title that it is actually separate property regardless of when it was purchased. Ditto for a vehicle. Similarly, clients have told me that because he/she and their spouse have separate bank accounts that anything they purchase with their separate bank account is rightfully their separate property.
While I always commend these folks for their creative thinking the fact remains that it does not matter whose income purchased the property or whose name is on the receipt/title. Income earned during a marriage is community property. Therefore, it doesn’t matter how you and your spouse divide up the income.
It is community property through and through therefore the property that is purchased with the community income is a part of the community estate. For many clients who thought themselves to be pretty slick this revelation can be a little deflating to say the least.
The ultimate question: who ends up with what at the conclusion of your divorce?
Negotiating on the property division in your divorce can be one the most contentious parts of your divorce aside from all of the issues associated with your children, if you have any.
Retirement accounts are a big money (literally) issue that is a concern for most anyone who has money saved up. Any portion of your or your spouse’s retirement savings what were accumulated prior to the marriage is considered to be separate property of one of you. Depending upon your individual ages, ability and capacity to invest well and the overall amount of retirement funds available there are a number of outcomes for the total amount of retirement.
One method would be to agree to a clean split, 50/50, of all retirement funds. Another would be for both you and your spouse to agree to keep any retirement monies in your name. In some instances, for example, if you have a substantial amount of retirement funds but your spouse has virtually none, you and he/she can agree to have you keep your retirement funds in exchange for an equally valuable asset such as the family home or a rental property.
Closing thoughts on dividing property in a Texas Divorce
One piece of advice I will give to clients in final orders mediation or just in speaking to them about their case is that a fair settlement does not necessarily mean a 50/50 split. Fairness is in the eye of the beholder and you and your spouse have a better idea about what is fair than anyone else.
If your goal is to hang your spouse over a balcony by their ankles until all their money falls out then you will most likely be in for a long and contentious divorce. However, if you are diligent in preparing a list of your property and are willing to negotiate from a position of fairness then you should leave your divorce with your fair share of property and most of your sanity left.
Questions on splitting up property in a divorce? Contact the Law Office of Bryan Fagan, PLLC
If you have read this blog post, first of all thank you for your time and attention. Secondly, if you have additional questions that were not answered by this blog then please contact the Law Office of Bryan Fagan, PLLC. Our licensed family law attorneys are available six days per week to assist you in a free of charge consultation.
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- Dividing Property in a Texas Divorce - The Just and Right Division
- 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
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- High Net Worth Divorce / High Asset Divorce
Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding Divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our Divorce lawyers in Houston 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, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, 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.
