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Determining how property will be divided in your Texas divorce is one of the most critical aspects of your case, especially when considering equitable distribution. The division depends on various factors unique to your situation, making it crucial to have an experienced family law attorney guide you through the process. Understanding how property division works in your case can significantly impact the outcome, as many variables can affect your settlement. While you may share similarities with others in similar circumstances, what applies to one case may not necessarily apply to yours. By working with an attorney, you can also explore options for recovering legal fees in divorce, ensuring you have the support you need throughout the process.
Understanding equitable distribution in a Texas divorce and how property is divided
Texas is a community property state. What that means in the context of your case is that once your marital property is determined in the case, Community property principles will be applied against how that property is divided. This could mean that any number of different outcomes could result as a part of your divorce. The options are pretty much limitless in terms of how the property in your case can be divided in the event of a divorce. When talking about property division in a Community property state like Texas, the popular belief is that your community property will always be divided evenly between you and your spouse.
However, this is not the rule in Texas. Furthermore, very rarely is property divided exactly down the middle in a divorce. There are almost always circumstances where you and your spouse end up leaving the divorce with an unequal share of the Community property. We will discuss those issues in today’s blog post as well as what equitable distribution of property in a Texas divorce even means. On top of that, we will also discuss how to ask for and be awarded attorney’s fees in your divorce case. Before we go any further, let’s talk about what it means to be a text thus subject to equitable distribution principles in dividing property.
What is the equitable distribution of your divorce?
Think back to when you were in college or otherwise had a roommate. When the two of you moved apart, how did you determine how the property that you own would be divided? I am going to guess that you did not take all the property inside your apartment and simply divide it down the middle, or do not think that you sat down together and thought about what a fair or equitable method of dividing the property would be. This wouldn’t make sense and it would be strange to even suggest this to a roommate.
How property is divided in a Texas divorce
On the contrary, the property that you purchased and owned will be taken by you after you moved out, and the same would be said of your roommate. Hear everything that he or she came into the home with would also leave with him or her. This was true of property purchased before moving in together as well as property purchased while you were living together.
This is not how property is divided in a Texas divorce. While it is true that property owned by you or your spouse before your marriage would go with you after the divorce as separate property, the big question we need to ask ourselves is how property is treated that is acquired during your marriage. Community property is the presumption in Texas. This means that when it comes to getting a divorce wait for the divorce court would presume that all property in existence between you and your spouse is owned by the community and therefore is divisible.
The concept of equitable distribution
You and your spouse can rebut this presumption by asserting that various pieces of property are separately owned by either of you. Separate property is any property owned by you or your spouse individually before your marriage. Additionally, property acquired during your marriage either by gift or inheritance would also properly be classified as separate property. Separate property cannot be divided up by a family court judge in a divorce. On the other hand, Community property can and will be divided in your divorce. You and your spouse can divide Community property in whatever fashion you wish. On the other hand, if you and your spouse are unable to determine how to divide your property, then a family court judge will be brought in to do the job for you.
A family court judge would rely upon the Texas Family Code to determine how community-owned property should be divided. The Texas Family Code mandates a “just and right” division of community property, which does not necessarily mean an equal split. Instead, a “just and right” division means that the division will be equitable, based on principles of fairness and equity. This emphasizes that additional factors will be considered when determining how to divide the property. These factors play a significant role in the process of equitable distribution, and understanding them is essential when navigating the division of assets in a divorce. Let’s walk through these important topics now.
What factors would a family court judge use to determine how to divide Community property?
As we just finished discussing, a Texas family court judge can capitalize on several different resources when determining how to divide Community property in your case. For starters, a just and right division of the property would be attempted. This likely means that the judge would need to consider the totality of the circumstances between you and your spouse when making this sort of important decision.
Probably the most important factor to many family court judges when considering how to divide property in a Texas divorce is the income-earning potential and history of you and your spouse. If one of you has a consistently displayed track record of earning more money from your work, then this will be a factor that favors your spouse when determining how to divide the property. The reason being is that the spouse who earns more money should be able to more readily rebuild after a divorce that had spells earning less money. As a result, whichever spouse has less income earning potential typically ends up being favored when it comes to unequally divided property.
How health and financial contributions impact property division in a Texas divorce
Next, the health of both you and your spouse will be considered by a family court judge. If one of you is healthy and one of you is not, then the less healthy spouse would likely receive a disproportionate share of the community estate due to the disability or impairment. This is an especially important factor for those of you who are going through a divorce in your golden years. If you are nearing retirement age, then no matter how healthy a lifestyle you lead, there may be chronic or degenerative conditions that begin to impact your life. In that case, a judge would consider which of you is more physically and mentally capable of working and providing for yourselves in the future. The spouse who is less able to do so may end up receiving more Community property in the divorce.
Another factor that I think is interesting to discuss but may not be considered all that much regarding divorce and property division analysis is related to the role you or your spouse played in helping the other achieve financial and career success. Suppose that, for example, your spouse worked as a waitress during the early years of your marriage to help put you through medical school. While you were studying and attending class to learn how to be a doctor, your spouse was working multiple shifts at a local restaurant. While you did not have time to work during medical school, your spouse’s income not only paid the bills but also helped you get through school. Without this assistance from your spouse, it is unlikely that you would have been able to become a physician.
How household contributions and caregiving roles affect property division
Additionally, while you practice medicine, your spouse stayed home to care for your home and take care of your children. This freed you up to take on lucrative professional opportunities that allowed you to earn substantially more money than you otherwise would have had you needed to be home to provide childcare. In this way, even though your spouse was not working outside the home at this stage, their efforts still provided you with a tangible economic benefit.
This is on top of the services provided by your spouse having an independent economic value of their own. For example, consider for a moment what it would have cost you to pay for a housekeeper, cook, nanny, transporter of your children, or tutor for the kids. Each of these roles could have gotten quite expensive for you to pay for throughout your family’s life. Your spouse willingly took on these roles to allow your family to flourish both relationally and financially. For this reason, it is equitable for your spouse to receive some degree of benefit for having filled these roles so readily.
How fault grounds influence property division in a Texas divorce
Finally, a family court judge would consider the fault that you or your spouse played in bringing the divorce to court. In Texas, you can get a divorce for no reason at all. This is otherwise known as a no-fault divorce. You would simply assert to the court that you are getting a divorce because of a discord or conflict in personalities. Not being able to get along well and having no chance at reconciliation is all the Reason you need to get a divorce. Most divorces in Texas are no-fault divorces.
On the other hand, there are specific fault grounds that can be asserted in a petition. These fault grounds attach to your divorce and require you to provide evidence showing that there is a basis for your having asserted them. You cannot simply assert a specific fault ground and then have no evidence to back up your assertion. Examples of fault grounds for divorce in Texas are abandonment, cruel treatment, and adultery. These fault grounds can result in a disproportionate share of your community estate being awarded to the spouse who is the spouse who is not at fault for having caused the divorce.
This is a lot to take in and can be a lot to consider. A judge can consider several different factors when determining how to divide the property. Rather than wondering or guessing at what factors will be relevant in your case, I think you are better off working with an experienced family law attorney with the law office of Brian Fagan. When you work with one of our lawyers, you can learn more about the divorce process, the laws that will influence your case, and hear from our attorneys how your circumstances may relate to both factors.
The role of a prenuptial or marital property agreement in a divorce
All the above factors are relevant regarding Community property division in a Texas divorce. I am confident that if you go through with your divorce and are not able to settle on property division questions with your spouse outside of court, that these are concepts and factors that will be utilized by a judge when dividing property. However, you and your spouse can sidestep many of these subject factors by working together to create a premarital or marital property agreement. By choosing to divide property on your own before your divorce even begins, you allowed two main advantages to come into place in your case. The first advantage is that you would not have to negotiate uncomplicated subject matter like this during a divorce with your spouse.
The second main advantage in the division of property is that you have the ability to create your own outcomes, rather than solely relying on a family court judge’s decision. As long as the method of dividing property you implement does not violate public policy norms in Texas, a judge will typically honor your agreement and attach it to your divorce paperwork. This allows you to avoid additional disputes, providing clarity in the divorce process. Prenuptial or marital property agreements aren’t just for wealthy celebrities—they can be highly beneficial for everyday individuals like you. By drafting a marital or prenuptial agreement, you can ensure a fair and equitable distribution of property, giving you more control over your future.
How are attorney’s fees handled in a Texas divorce case?
Attorney’s fees are subject to being divided in a Texas divorce case. The most important factor that a judge would look at when determining whether your spouse should pay your attorney’s fees is the financial circumstances that both of you are in. As we saw with the division of your community estate, if your spouse earns a substantial income and might have money, then it may be appropriate for that spouse to pay for all or a portion of your attorney’s fees. This would allow you to stand on more solid ground after your divorce is over. You would not need to be overly concerned with bills or paying for items that you are unable to afford.
How behavior during divorce can impact the division of attorney’s fees in Texas
Another circumstance that may impact how attorney’s fees are divided is your behavior during the divorce itself. For example, if you or your spouse repeatedly violate court orders, are difficult to deal with in connection with the case, or act inappropriately or unethically, then a judge may order the bad acting spouse to pay for the other’s attorney’s fees as punishment.
Most of the time, attorney’s fees are taken into consideration at the end of your divorce. These fees are typically considered community property, as you and your spouse remain married until a judge signs the final decree of divorce. You can present the total amount of your attorney’s fees to the judge at this time and allow them to factor in the circumstances we’ve discussed when determining how property should be divided. The judge may also decide whether one spouse should pay the other’s attorney fees based on the principles of equitable distribution, ensuring fairness in how the financial responsibilities are handled.
Understanding interim attorney’s fees and their impact during a Texas divorce
Finally, interim attorney’s fees may be ordered for payment during the divorce. This means that your spouse would be responsible for any costs while the case is ongoing. This is as opposed to paying out attorney’s fees at the end of your case. You may even see a judge order you to take out a loan to pay for these attorney’s fees if they are ordered during the divorce. Having children involved in your divorce also creates another circumstance where the payment of attorney’s fees may be ordered.
In conclusion, recovering legal fees in divorce is an important consideration that can help ease the financial burden of the process. The division of property in a Texas divorce, particularly under the concept of equitable distribution, can be complex and varies based on the specific details of your case. Working with an experienced family law attorney ensures you fully understand how property will be divided and what legal avenues may be available for recovering attorney fees. By being informed and prepared, you can navigate the complexities of divorce with confidence and protect your financial interests throughout the process.
Questions about the material contained in 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 as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.
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