The question of how property is divided during a divorce is always relevant. For those of you who are relatively new to the topic of divorce, there are two stages or two parts of a divorce. The first part deals with children and custody of children born out of that particular marriage. The second part of a divorce that is relevant to our discussion today is property division, the community estate, and marital debts. This is a subject that many overlook during the initial stages of a divorce due to the heavy emphasis on children and adapting to life during a divorce.
Divorces are serious matters no matter what the facts and circumstances of your particular case are. No matter what is at stake from a property division perspective, it is essential to your present and future that you be aware of how property is divided and what positions you can take during divorce about the property. It can be argued that it is even more critical for you to understand the significance of property and money issues during the middle of a pandemic. While these topics are always relevant and always necessary, we feel financial issues more acutely in abnormal times like the one we live through right now.
If you are considering divorce right now, then you need to be aware of how property is divided in a divorce. Once you have learned the basics of property division in a Texas divorce, you can become more aware of how these general principles of Texas family law apply to you and your family. The interesting thing about property division in a Texas divorce is that the law allows spouses to become very creative in a divorce to create solutions to problems in this area. However, you will not be able to fully engage in this type of negotiation during the divorce unless you have a firm basis of knowledge from which to proceed.
Community property basics in Texas
before we go any further in our discussion today, we need to establish the basics of property division in Texas. This may not be exactly where you want to begin especially if you are on the precipice of filing for divorce or require filing an answer to a divorce that was just filed against you. You may feel like there is a certain amount of pressure on you to learn as much as you can in as short a time as you have been given. It’s sort of like the need to drink water from a firehose. Your instincts tell you that you need to take in as much information as possible right now before it’s too late.
I would recommend that you not give in to the temptation of jumping too far ahead when it comes to practical advice in the property division during your divorce. The simple reason is that you need to know the basics of this subject before getting into anything complicated. The laws in Texas concerning divorce are not unlike anything that we learned in school. He didn’t learn trigonometry in first grade, and you didn’t start reading Shakespeare’s plays in kindergarten. Instead, he learned the basics of each subject and then progressed into more in-depth material. I assume that you are walking into this divorce without any specific knowledge of property division in a Texas divorce. That is where we are going to begin The meat and potatoes of today’s blog post.
The most fundamental aspect of property division in a Texas divorce in Texas is a Community property state. Most states in the United States are known as standard law states when it comes to property division. This means that courts in those states will divide property in a divorce in a somewhat equitable fashion in terms of whose name appears on the title, loan, or other financial documents associated with the property. In this way, the property can be divided according to who’s income purchased the particular item.
For example, it is a lot more critical in Indiana for Ohio to divide up a home or vehicle to see whose name and whose income went towards purchasing that vehicle. Parties in these states know that the spouse who earns more money and whose income is purchased more property will tend to take home that property in a divorce. As a result, you tend to see property being divided much more unevenly, but it may be argued to be fairer.
Texas counts itself among twelve other states which adhere to community property principles in divorces. Most significantly, Community property law In Texas assumes that all property in place for two persons going through a divorce is community-owned property. Community-owned property in Texas is divided up not according to whose name appears on the property but in a more equitable fashion. Let me give you a short example to illustrate this point.
Using the marital home as an example of community property law in Texas
Suppose that you and your spouse purchased a family home when you first got married 12 years ago. Over time, you stayed home as a parent in your Wife and took care of the home while your husband went and worked. During that time, you earned no income but contributed to the household by raising children, keeping up the house, and providing many essential functions of that type. Recently your husband filed for divorce against you, and you are now concerned with how the equity in that home will be divided if you all choose to sell the house in your divorce. Will you walk away with nothing because your name is not on loan To the home, and your income did not contribute to paying down the mortgage?
The simple answer is that despite your not having contributing monetarily to the home, you still have a distinct ownership interest in the home. It doesn’t matter if your name is not on the mortgage. Nora doesn’t matter if your name isn’t even on the title to the home. As long as the home was purchased during your marriage and the income used to buy the home was income earned at your spouse’s job, that home will be classified as Community property in the divorce. Therefore, it is subject to being divided up; ask Community property, and you have an ownership interest in that home.
Given the presumption towards all property owned at the time of your divorce being Community, property evidence must be submitted to the contrary if either you or your spouse wish to prove that a particular piece of property should not be divided in the divorce. For example, despite the presumption that property purchased during the marriage is Community property, if that property is shown to have been purchased with money that was explicitly gifted to your spouse, or you for that matter, then the property bought or the money received would be classified as either your spouses or your separate property. Separate property is not subject to division in divorce. The individual property also counts as any property owned by either you or your spouse before your divorce. Suppose there is disagreement about whether or not a particular piece of property is owned by the Community or is done separately by either you or your spouse. In that case, the party arguing its separate nature must present evidence to that effect.
How can you expect the property to be divided in your specific divorce?
Now that we have established the basics of Texas Community property law, we can discuss more in-depth how you could expect property in your divorce to be divided up. Many people understandably assume that property in a divorce, if it is in a Community property state like Texas, must be divided precisely 50/50. I can very much understand this assumption, and the truth is many times, the property is divided up in a pretty close to 50/50 fashion. However, that does not necessarily have to be the case. Here are some factors that may be relevant to your divorce and the nature of how property is going to be divided.
One of the most significant factors that I can consider in writing today’s blog post is whether or not fault grounds will be relevant to you and your spouse. Suppose adultery, financial misconduct, abuse, abandonment, or other specifically listed reasons for divorce are apparent in your case. In that case, the property in your case may be divided up in a manner that is not necessarily straight down the middle. Why is this the case?
Courts tend to look negative leopon Persons whose actions went above and beyond in breaking up a marriage. For instance, if your spouse committed adultery against you, used community resources to buy gifts and other presents for their Paramore, and harmed you, your children, and your finances; as a result, a judge in a Texas family court would likely be willing to award you what is known as a disproportionate share of your community estate as a result. This means that you would be in a position to receive more significant than 50% of the Community property, given your spouse’s role in the breakup of your marriage.
this does not mean that every active infidelity or every instance of wrongdoing in a marriage will lead to a disproportionate division of the community estate. It would help if you didn’t leave this blog post thinking that because your spouse cheated on you or you cheated on your spouse that there is nothing else relevant when it comes to property division. I’m here to tell you that there is almost always more than one factor considered in dividing property, and adultery isn’t necessarily a factor that will cause it a disproportionate reward. However, it frequently does in it certainly merits mention here.
The last factor that I wanted to mention, Which is relevant to many divorces, is your future prognosis for income and financial stability and that of your spouse. Let’s go back to our example where I hypothetically listed your spouse as the one who would go out and work each day while you would stay home and care for the family. You may be looking at a circumstance where you will need to return to the workplace or start working for the first time due to your divorce. In light of events like these, how may the Texas family court divide up your community estate?
In my opinion, it is much more likely that a court would provide you with a disproportionate share of your community estate given the above circumstances. This is due not only to fairness and equity but also acknowledges that your spouse is in a better financial position than you are from an educational, job experience, and career perspective. Family courts in Texas are typically not overly excited to award spousal maintenance after the conclusion of a divorce. With this in mind, a judge would probably be more willing to award you a more significant stake in your community estate to help you get on solid footing in the immediate period after your divorce.
Questions about property division in a Texas divorce? Contact the Law Office of Bryan Fagan
If you have any questions about the material presented 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 consultation six days a week in person, over the phone, and via video. We are here to serve you now and into the future. Thank you for showing an interest in our law office, and we hope that you have found today’s blog post to be entertaining and full of practical information for you to use in your circumstances.