Property division in a Texas divorce is one of the most complex and complicated issues that you and your spouse will face. How the issues associated with this subject are sorted out will likely determine the type of success that you encounter in your case. If you are concerned with an unequal division of your community estate, then your concerns are warranted. It is not necessarily the case that property will be divided up equally in a divorce. Not only is that impractical but it may not be what a “just and right” division of your estate looks like.
To better understand how you could find yourself in a position where an unequal division of your property is occurring, we need to learn a little about community property laws. That is where we are going to begin today’s blog post by going over the basics of community property law. Once we understand better what it means to be a community property state, we can then get into a discussion about the circumstances that may be relevant to your case where property may be divided up unequally.
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. Our attorneys are excited each day to serve our clients and we couldn’t be happier to work for our neighbors here in southeast Texas.
Community property basics
Walking through the basics of community property law in Texas means that we need to establish what community property is and what it is not. Community property is a legal theory that the state of Texas applies to property owned by married persons. For the most part, community property can be thought of as property that is purchased or acquired by a person while he or she is married. Some exceptions to this rule include property acquired during the marriage either by gift or inheritance. Otherwise, the property that is acquired during the marriage should be thought of as community property.
Why is this important? Community property can be divided by a family court judge in your divorce. So, it is important not only to know what property you own is community property but to gain an understanding of what the value of each piece of property or asset is. The value of the property is important because this is where we can determine whether the community estate is being divided evenly or not. Many people assume that property must be divided evenly between spouses in a divorce. This is not the case. A “just and right” division of property is what a family court judge would look to as far as a legal standard is concerned. However, a just and right division does not necessarily equate to “even” or “equal.” Rather, a just and right division more likely means that you and your spouse are going to have all your circumstances considered in dividing up property.
Fault grounds that can be established, your role as a provider before the divorce, your health, your educational level, and job prospects after the divorce are just a few of the circumstances and factors that a family court judge will likely consider in your case when it comes to dividing up property. Additionally, a factor that the judge almost certainly would consider is the separate property estates of you and your spouse.
Separate property is any property owned by you or your spouse before your marriage. If you came into the marriage with certain assets or property, then those things are what will be a part of your separate estate. The same can be said of your spouse. This can seem like a clear-cut distinction, but it does not always turn out that way in a divorce. Co-mingling of property can cause there to be a grey area as far as whether the property is owned by you, your spouse, or both of you. If you are interested in this topic, then we have many blog posts on our website for you to look at. However, we will not be getting too deep into the subject of co-mingled property for today’s blog post.
One of the first assignments that you will have in your divorce is to inventory all your properties and then appraise the property. Inventorying property means going through all the properties that you own and making a list. This should be tangible property like household items as well as intangible property like stocks. You can then take the property that you have inventoried and divide it up between your separate property, your spouse’s separate property, and the community estate. Doing this at the beginning of the divorce allows you not only to better organize your life but to get a better understanding of how you may be able to implement a strategy for dividing up property at the end of your divorce.
Appraising the property means assigning a dollar value to each property item. I am not saying that you need to hire a professional appraiser to determine the value of each item. This is not practical and can get rather expensive. Instead, I am suggesting that you spend some time assigning values to those assets whose value is not self-evident. A bank account with $10,000 in it is worth $10,000- no need to spend a lot of time thinking about this issue. Otherwise, take the time necessary to go through the house, assign values to the items you find, and think about what estate the item should be placed into. The more work you can do on your own, the less you must pay your lawyer’s office to help you with down the road.
Dividing community property in a Texas divorce
Once you and your spouse have agreed on what property goes in what estate, the next part of the job is to determine how you all are going to divide the property. The easiest route would be to take a metaphorical knife and simply divide the property straight down the middle. While that sounds practical and simple, it is not always fair. You need to consider all the circumstances associated with your case, just as the judge would when it comes to dividing up community property. Let’s walk through some of those circumstances now.
As we mentioned earlier in today’s blog post, it is possible to list specific fault grounds for divorce in a Petition. Fault grounds for divorce are acknowledged reasons why a divorce may be necessary and brought about by the actions of either your or your spouse. Examples of fault grounds for divorce include abandonment, adultery, commitment to a mental institution, and infertility. If a judge finds that you or your spouse can substantiate this sort of allegation, then you may be in line to receive a disproportionate share of your community estate. Disproportionate means more than half.
Your work history matters, as well, when it comes to dividing up community property. If you have been a stay-at-home mother for the past twenty years, then it is probable that you do not have a resume that will allow you direct entry into skilled work. By the same token, your spouse may be able to maintain their current level of employment for many years. This may give the judge more reason to award a disproportionate share of your community estate to you rather than your spouse. A judge will be interested to see what you and your spouse have been doing for work, especially in recent years.
Related to this subject is your educational level. What is the highest grade level that you completed in school? If you are a high school graduate with no college and very little in the way of work experience, then these are factors that are going to limit your ability to go out and find gainful employment after the divorce is limited. By the same token, if your spouse has a master’s degree and decades of work experience then this should allow for him or her to be able to land on their feet financially after the divorce.
Health has been a major topic of interest these past few years- and with good reason. Everyone wants to remain as healthy and vibrant as possible for as long as possible. When we have two people getting a divorce a court would look to your health as a factor to consider when dividing up the community estate. If you are relatively healthy then this may not be a predominant factor in your divorce. However, if your spouse has health problems that probably will impact their ability to work in the future. As a result, a judge may award a disproportionate share of the community estate to him or her.
These are among the most important factors for a judge to consider but bear in mind the vast majority of divorce cases are not litigated in a court but are decided by the spouses in mediation. Mediation allows you and your spouse to utilize your criteria when it comes to assessing how community property should be divided. In this way, you and your spouse are likely to have the final say in how the property ends up being divided and whether an unequal distribution of these assets is warranted. There are many ways to go about dividing up community property.
The main limitation when it comes to dividing up community property is the creativity of you and your spouse. If you all are creative, then you can come up with some outside-the-box plans for how property is divided. When you consider the number of assets that you own, how some are tangible and some intangible, it can make a huge difference to your case’s outcome whether you hired an attorney. If you have no experience in dividing up assets like this in a divorce, then it is a wise idea to at least consider hiring an attorney to assist you in this regard. Your attorney will have seen how other people have successfully divided up their community estate and can apply those lessons to the specific facts and circumstances that you are encountering in your divorce.
Property division and its impact on your life after a divorce
How your property is ultimately divided in the divorce can have a significant impact on your life after the divorce. The period immediately following your divorce is a known period of transition for almost everyone who goes through a divorce. You may have moved, changed jobs, or had to find work after your divorce. This period will be hallmarked by your needing to adjust to life as a single adult. For some people, this may be a more difficult transition than for others. The bottom line is that you need to consider what your life is going to look like after the divorce before you can be fully informed during the divorce on how you are going to make settlement offers on how to divide up this property.
For starters, you can consider what kind of financial assistance (if any) you are going to need after the divorce comes to an end. As we talked about earlier, if you have been a stay-at-home parent or spouse for the past few years then you may need to dust off your resume- or in some cases create one to send out for job applications and interviews. If you do not have an education beyond high school, have not worked in some years, or suffer from an impairment (mental or physical) that impacts your ability to work then you should consider that you may need more than half of the community property in your case to be awarded to you. That excess property can be sold to help you go back to school, pay bills, pay rent, or do whatever it is that you need to do at that time.
The subject of spousal maintenance comes up a great deal in divorce cases as they approach mediation or a trial. Spousal maintenance is intended to help you, or your spouse pays for the essentials in life if you are found to be unable to provide for your own basic needs once the divorce comes to an end. However, many family court judges would prefer to award a disproportionate share of your community estate to the spouse who needs the money rather than award a multiple-year obligation of spousal maintenance. As a result, if you believe that spousal maintenance is going to be necessary in your case you should first determine what property exists in your community estate. In addition, the separate property that you own can be sold to help you keep your head above water while looking for employment after your divorce.
Probably the most important and largest asset that would be divided in your divorce is your family home. Not only is it an asset with a lot of memories and emotion attached to it but it is also a place where both you and your spouse live. Many circumstances attach to a family home that needs to be sorted out before the end of a divorce.
There are only three options to choose from when it comes to the family house. Those options would be to see the house and split the proceeds from the sale, for your spouse to remain in the house, or for you to remain in the house. Whether or not you have children will likely play some role in making this determination. You should pay close attention to your options when it comes to the house and think long and hard about whether you can afford to make a mortgage payment on your own after the divorce ends. Signing up for those mortgage payments in the divorce may sound noble but it can quickly become a burden if you are unable to meet those obligations as a single adult.
With so many circumstances swirling around property division in a divorce, you should consider your options when it comes to representation. The better represented you are the more possibilities that are available to you in negotiations. The more options you have the better you will likely end up as you begin to think about life as a single adult after the divorce.
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Other Articles you may be interested in:
- What Wikipedia Can’t Tell you About Texas Divorce and Marital Property Division
- Texas Divorce Property Division Enforcement
- Separate Property in a Texas Divorce?
- What to do when your divorce decree does not include a marital asset?
- High Net Worth Divorce / High Asset Divorce
- How Adultery May Affect Property Division and Texas Divorce Proceedings
- Property Settlement Guide: How Assets are Divided After Divorce
- Property and Child Support for the Texas Entrepreneur
- What to Expect in a Texas Divorce Property Division in Texas
- Examining Inequality in Property Division in Texas
- What role does the acquisition of property play in its classification?
- What is community property in Texas?
- Matrimonial Asset Valuation & Property Division: How it Works
- How to Protect Your Separate Property in Divorce
- Property Division & Taxes: The Basics
- Life insurance and its role in property division as part of a Texas divorce
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
