When contemplating the divorce process, a critical aspect to address is property division in Texas. It’s important to note that not all assets receive equal treatment in divorce proceedings. While you and your spouse may have personal opinions on property ownership based on various factors, it’s essential to recognize that a family court may view it differently. Therefore, it’s crucial to approach property division according to the guidelines outlined in the Texas Family Code and prepare accordingly for proceedings in family court.
Community property and division explained
This may come as a difficult real reality for some of you. I have talked to many clients and potential law firm clients on multiple occasions about this subject. Sometimes, people can’t get past how the law in Texas may differ from their own opinions on how various property pieces should be classified. While you may have perceived ownership of a specific piece of property as belonging to either yourself, your spouse, or both of you, the law often holds a distinct perspective on the matter. We must decide how the law will characterize property in your case and decide how to negotiate for a just division.
However, before discussing this subject, we must first discuss how Texas characterizes, classifieds, and ultimately divides property in a divorce. For those of you who don’t know, Texas is a Community property state. This means that a divorce in Texas may treat property division much differently than a divorce in another state. When we often receive advice on divorce from people in our family or from articles online, this can be a tremendous problem. You do not want to take the advice of someone unfamiliar with Texas divorce laws regarding Community property and property division.
With that said, let’s delve into the process of divorce in Texas, focusing on the perspective of community property and property division. Understanding the fundamentals of community property and its implications for dividing your estate will better equip us to navigate the intricacies of community property division and comprehend how it may impact the distribution of assets in your life during a divorce.
The basics of Community property in Texas
As mentioned earlier, Texas operates as a Community property state. This implies that during divorce proceedings, the law presumes all property owned by you and your spouse is part of the community estate. In such instances, the separate estate of either you or your spouse would receive an allocation for any assets or property items individually owned.
Typically, separate property consists of any assets or property owned by you or your spouse before the marriage. Furthermore, property obtained during the marriage may also qualify as separate property under particular circumstances. Generally, inherited or gifted property during the marriage would also fall under a spouse’s separate estate. Note that to classify a gift as a separate property, it must be explicitly designated for one spouse or the other.
If a dispute arises concerning whether the property belongs to the community or the separate estates of either you or your spouse, you should be ready to present evidence supporting your claim. Often, this evidence includes receipts or title documents indicating the date of purchase and ownership transfer for the item in question by either you or your spouse. Sometimes you won’t even need to hire an expert witness like a forensic accountant to trace the origins of when you came to own a certain piece of property to prove to a court that the property did belong in your separate estate.
Deciding community property division in Texas
Otherwise, most property involved in your divorce will likely be classified as community-owned. This underscores that property owned by the community must undergo division of some sort during a divorce. This is where you and your spouse must place the most emphasis on your case. Deciding the division of items such as vehicles, jets, and other personal property is crucial in a divorce case. This isn’t even to mention additional property types that are often provided with worse retirement accounts or family homes.
Despite what many people believe, there is no set method for dividing Community property in a Texas divorce. One assumption is that property will be divided equally between you and your spouse. I think this method tends to strike people as being fair and equitable based on the circumstances of your case. However, it may not be true that the circumstances of your case demand a perfectly even divide of your Community property. Consequently, we must address the circumstances in your case that may lead to the disproportionate division of community property. What specific circumstances could lead to the uneven division of community property between you and your spouse?
What circumstances could lead to the property being divided up disproportionately in your divorce?
The first circumstance that I could foresee resulting in a disproportionate division of your community would be that of fault grounds playing a role in the divorce. Fault grounds are specific reasons why your divorce has a curd. Most people in Texas end up getting divorced in a no-fault divorce. A no-fault divorce states that the cause of your divorce was discord or conflict in personalities between you and your spouse, resulting in an irreconcilable conflict between the two of you. This way, you can get a divorce but do not have to specify a particular reason for doing so.
However, some circumstances justify specifying a particular fault ground when it comes to your divorce. Some examples of fault grounds are adultery, abandonment, and domestic violence. These are specific grounds that you could cite as to why a divorce is necessary for your marriage. You may be wondering why specifying fault grounds can be so important period; after all, if you can get a divorce for no reason at all, what is the purpose of specifying a particular reason for your divorce? The reason why fault grounds can be important to divorce is that fault grounds can determine how your Community property is divided.
Implications of adultery allegations in divorce
For example, let’s suppose that you specify in your original petition that you and your spouse are getting divorced because he cheated on you and committed adultery. This is a dire setup circumstance to allege against your spouse. If you can prove that adultery did play a central role in your divorce, there can be multiple impacts of this type of allegation on your post-divorce life and the outcome of your divorce presently.
The first area of your divorce that a successfully proven allegation of adultery could impact is that your children and the child custody component of your case may be different. Exactly, if your children became aware of the adulterous behavior, it could be interpreted as a demonstration of poor judgment by your spouse. In such a scenario, the judge may penalize them, potentially reducing the frequency of visitation rights compared to what they might have had if the adultery had not occurred.
In the division of community property, fault grounds are relevant factors to consider regarding potential deviations from a 50/50 split. Fault in the breakup of your marriage means that the court must find that you not only have evidence to prove that your spouse behaved badly but that the bad behavior impacted your marriage negatively in a tangible way. You might be surprised to learn that family court judges don’t treat all incidents of infidelity in a marriage the same way.
Impact of adultery on property division in divorce
If the adultery impacted the lives of your children, and resulted in the wasting of community assets or something similar, then a judge is more likely to consider the fault grounds as a factor when dividing community property. On the other hand, if the adultery occurred but did not impact your children, or your community finances or did not occur over a long period, then it is less likely that the judge will consider that in dividing up your property.
The wasting of community assets is a factor that I think demands special attention when it comes to adultery. The whole purpose of considering fault grounds in the property is to ensure that equity and fairness are at the forefront of your case. If the judge sees that your spouse has spent money on gifts, hotel rooms, or other things for their significant other, then they are more likely to award you a greater than 50% share of the community estate.
If this is a situation that is relevant for you and your family, then I would recommend having your ducks in a row as far as being able to present evidence to a court. Receipts, dates, and other details regarding dividing up property based on wasting your community assets would be essential. It would be best if you worked with your attorney to obtain this evidence and organize it before it comes time to negotiate with your spouse or present the evidence in a trial.
Dividing up your home in a Texas divorce
If your family house is community property, you’ll face decisions regarding its division in the divorce. One option is for you to keep the house while your spouse exits post-divorce. You’d likely need to take over the mortgage payments and buy out your spouse’s equity share. This is advantageous, especially with children and financial stability. Otherwise, exploring alternative options for the house may be preferable.
A second option that is a viable one would be to allow your spouse to remain in the house and for you to be paid out of your equity so that all of you can go your separate ways with some contentment after the divorce. This is a great option if you cannot meet the significant financial demands of paying a mortgage on your own after a divorce. Additionally, the home is a lot to take care of and is a significant responsibility. There is nothing wrong with allowing your spouse to take on the mortgage responsibility. You can walk away from some cash or a greater share of the rest of your community estate as a result.
Finally, you and your spouse can agree to sell the house as a part of your divorce. This is probably the neatest way to handle the marital home in your divorce. You can agree to the terms of hiring a realtor, selling the house, and then splitting the equity in the home based on all the factors of your case. It would be best to speak to your attorney early in your case to determine what is best for your family.
Negotiating a division of your community estate
Contrary to what many people believe, the most likely outcome of your family law case will be that you and your spouse settle things in mediation rather than going to a contested trial. This scenario benefits everyone involved and usually enables you and your spouse to actively shape the final terms of your divorce. A family court judge may mean well, but ultimately, they will not know your circumstances better than you all do.
Negotiation essentials in divorce proceedings
This requires you to prepare for trial and negotiate as if it’s a genuine option for resolution. Many people who go through divorces do not consider the role that negotiation plays in a case. For that reason, these folks will act like it is a foregone conclusion that the divorce will end in court. This could not be further from the truth. You have every opportunity in the world to settle your case with a strong showing in mediation.
Begin by documenting your personal property. Before filing for divorce, you can photograph all property in your house, safes, and other private areas. This guarantees that you’re aware of which items require accounting and division in the event of denied home access. Additionally, yours would not be the first case to see property “grow legs” and walk away at some point during the proceedings.
Documenting all your property and then assigning values to the property is accounting as well. It would help if you had a rough idea of how much your property is worth so that you can negotiate on it all. Going into mediation with only part of your estate accounted for is a bad idea. Not only will it put you at a disadvantage, but it will not encourage your spouse to negotiate with you. The more organized you are, the better presentation you will give to your spouse as far as settlement offers are concerned.
Tailoring property division goals in divorce
Finally, it would help if you worked with your attorney to develop goals that consider your circumstances when negotiating the division of your community estate. Asking for a disproportionate share of your community estate when you have not worked in years or have not worked in years may be justified. However, asking for the same division when you have a superior education or job history probably wouldn’t result in the same outcome.
Either way, there are many moving pieces when it comes to dividing up your community estate. The best way to account for this is to hire an attorney with family law experience and specifically has experience handling divorce cases. Thank you for your attention and time in reading today’s blog post. We hope that you will join us again here tomorrow.
In conclusion, navigating property division in Texas during a divorce requires a thorough understanding of how assets are characterized and divided according to the Texas Family Code. While personal perceptions of ownership may differ between spouses, adherence to legal guidelines is paramount in achieving equitable outcomes in family court. By aligning strategies with the principles outlined in the Texas Family Code, individuals can better prepare for the complexities of property division proceedings, ensuring a fair and just resolution to the dissolution of marriage.
Questions about today’s blog post? Contact the Law Office of Bryan Fagan
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 and about how your family may be impacted by the filing of a divorce or child custody case.
Other Related Articles:
- Diving into the Lone Star Legal Drama: Unraveling Divorce and The Property Division Guide Mystery in Texas!
- Splitting Smart: Navigating Texas Property Division
- Common Mistakes To Avoid In Property Division
- Emotional Impact Of Property Division In Divorce
- Adultery and the Texas Family Code
- Does Adultery Impact Alimony in a Texas Divorce?
- Adultery: The Consequences in Texas
- What is community property in Texas?
- Navigating Community Property Laws in Texas Divorce
- Dust Off Your Boots: A Texan’s Guide to Community Property 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.
