One of the trickiest parts of a Texas divorce case relates to dividing up community property. Marital property is a subject in every divorce case across the country no matter what state the divorce is taking place in. However, the key issue for us to cover relates to how Community property laws in Texas differ from the marital property laws of other states. No matter what the laws are in Texas there are always concerns on the ground level between people like you and your spouse. No matter what the law says in Texas about dividing marital property you simply want an outcome that is fair and that protects your interests as much as possible. 

This is where your attorney comes in. We are going to cover the basic process of dividing property and deaths in a Texas divorce in this blog post. However, the subject matter related to this topic can get much more complicated and in-depth than we can go in this blog post. Therefore, if you believe you have a complicated state or simply the largest state, you should follow up with one of our licensed family law attorneys. We can walk you through what it looks like to go through a divorce specifically as it relates to property and debts. You don’t need to wonder about this subject or have concerns over how your life may change as a result of the divorce. You can reach out to one of our experienced attorneys to get a better idea about how the law would treat you and your family gave your specific circumstances.

A few words on Community property in Texas

As we have discussed, Texas is a community property state. As it happens, the subject of Community property division oftentimes becomes one of the most contentious and highly debated topics in a divorce. Understandably, this is the case given the high dollar amounts that are oftentimes at stake. For example, who wouldn’t want to know the likelihood of their being able to keep the family home when at home is valued at over $1,000,000? It is questions like these that an attorney with experience in family law cases is well equipped to handle.

You may also have questions about whether you would be able to maintain the property after the divorce that was purchased before your marriage. An example of this relates to real estate from prior marriages or simply from your days as a single individual. If you purchased a home before your marriage to your current spouse, then that house should theoretically be able to remain in your name after a divorce given its separate property nature. However, there may be questions surrounding possible reimbursement of Community property income that went towards the development or improvement of this property. Therefore, even an issue that is fairly cut and dry may have elements that can be confusing or difficult to wade through if you do not have someone by your side to help you determine what is Community property and what may not be classified as Community property.

As we touched on a moment ago, Texas is a community property state. What this means on a basic level is that all income that you have earned while your marriage and all property acquired by either you or your spouse during the marriage is considered to be marital property. This property would belong equally to both you and your spouse no matter whose income is used to purchase the property or whose name appears on the title to the property. This is a major difference from many states where it is much less of an “ours” situation and more of a “yours” and “mine” situation. the same rule applies for debts that are acquired during the marriage.

If your divorce case goes all the way to a trial their family court will be charged with dividing the property along the lines of a just and right division. A just and right division may be based on case law and statutes but oftentimes rests on the personal biases and experiences of the family court judge. Additionally, the factual circumstances of your case will play a large role in determining how the property is divided along with the debts. Therefore, you need to understand how a judge would likely do with your case so that you can negotiate more intelligently throughout the divorce case itself. 

One of the things that many people do not realize about their divorce case is that it is much more likely for you and your spouse to negotiate a conclusion to your divorce rather than for a judge to decide closing out matters. Whether it be through informal settlement negotiations or in a formal setting like mediation, you and your spouse are more likely to arrive at a conclusion together rather than have a judge decide if she’s related to the division of your community estate. 

Importantly, what this means is that any legal standards how to judge will use in terms of dividing up your community state likely will not matter much. Rather, it is much more likely for you and your spouse to engage in negotiation throughout the case that leads to a resolution. Do not get hung up too much on the chest and right division language that I just use with you. Rather, you should become familiar with your case in terms of property and debts so that you can better negotiate as your case moves forward.

The last thing that I will mention about this subject is that what ends up happening in these cases is that your circumstances can end up mattering more than the law in many regards. for example, hey judge needs to consider the Texas family code and apply it to your case regarding subjects like specific grounds for divorce. For example, if marital infidelity caused the divorce and is cited by you as a reason for the divorce case then you may be in line to receive a disproportionate share of your community state as a result. with that said, learning as much as you can about the Community property division process in your case is incredibly important.

Doing what you are doing right now is a great place to start. Trying to obtain general information that can apply to your family is important but being able to take general information as well as the laws of Texas and apply them to your case is even more critical. 

For that reason, I would recommend that you contact the Law Office of Bryan Fagan today to go through the circumstances of your case and for you to be able to learn more about how the law figures to factor into your life specifically by attending one of these free of charge consultations with an experienced attorney you will be provided with information based on what you talked to our lawyers about. You can then utilize this information about deciding whether to hire a lawyer at all as well as what the best course of action may be in terms of developing a strategy for your case regarding a division of Community property and debts.

Property is presumed to be part of the community estate in a Texas divorce

One of the most critical pieces of information regarding this topic relates to the presumption that all property owned by you and your spouse at the time of your divorce is a community in nature. Some of you may be shaking your heads in wonderment at this statement given what we have just talked about regarding there being such a thing as separate property. The reality is that separate property is an important part of your divorce case, but divorce courts start from the presumption that the property relevant to your lives is a community in nature. 

Undoubtedly, either you, your spouse or both of you will allege that certain property is separate. In that case, your spouse is free to agree with you and he or she would then stipulate this assertion. There would not have to be any additional discussion in the court would not be able to divide that property. 

However, if your spouse disagrees with your classification of a particular piece of property then the burden would be on you to prove that the property is separately owned. This may mean showing proof in a trial of receipts, title documents or simply relaying the transactional history of a piece of property. In especially complicated situations, such as those involving complicated financial instruments or accounts you may even need to hire a forensic accountant to go back and trace the history of a particular piece of property. However, for the most part, this should not be necessary.

What is separate property? 

The separate property would include any property that belonged to you or your spouse before your marriage and was not placed into the community estate during your marriage. Other examples of separate property include income from separate property, property that was gifted solely to you or to your spouse as well as an inheritance that you or your spouse received from a relative.

If you receive money in a personal injury settlement or verdict then that money is also classified as separate property. However, the exception to this rule would be if a portion of that verdict or settlement was supposed to be allotted towards loss of income. As we have already covered, income during the marriage is Community property and thus subject to division in Texas divorces. Therefore, income from a motor vehicle or workplace accident would be treated the same way. However, I cannot emphasize enough how important it is for you to speak with an experienced family law attorney Internet to rely upon this piece of general information. 

What about dividing up retirement accounts? 

When I’m talking about retirement accounts for a divorce, I am discussing things like 401K’s, individual retirement accounts, and pension benefits. These could be benefits that you contributed to during your marriage or contributed to during the marriage as well as before your marriage. Once the divorce is taking place a family court would need to evaluate all these accounts and determine how much of it belongs in the marital estate. For this reason, the court will likely ask you to inventory any retirement accounts and to appraise those accounts to determine their approximate values both before your marriage and during the marriage itself. This is important when it comes to discussions about dividing up these accounts which can be extremely valuable.

What factors will a court consider when determining how to divide up Community property?

Ultimately, your family law judge will have the discretion to distribute your community property in whichever way it believes is fair, right, and chest. However, there must be a reasonable basis for the judge’s determination. He or she cannot simply divide the property however he or she sees fit based on no specific rationale. Rather, objective factors and the subjective opinions and experiences of the judge will factor into how they divide up your property should your case make it to a trial. The presumption that an equal division of the property should be had will be based on several factors that we will go over right now.

The educational differences, if any, between you and your spouse will be important to consider. For example, if you have a master’s degree and earn a six-figure income while your spouse has only a high school education and has not worked in some years then this will surely factor into that edge’s consideration of how to divide up the Community property. The judge would likely award a disproportionate share to your spouse in this scenario given that it would likely be more difficult for them to earn that share of their state back on their own. 

Next, the ages of you and your spouse will be important for a judge to consider. If you and your spouse are going through a divorce while you are young, then it could be that a judge considers other circumstances more so than your ages. On the other hand, if you are going through a divorce and are in your golden years then the judge may be concerned a great deal with your age is given that retirement may be around the corner or even staring you in the face right now. In that case, the judge may want to pay special attention to how he or she divides up your estate from the standpoint of making sure both you and your spouse have sufficient property to subsist upon as you head into retirement. 

next, your health would be a factor that the family court judges would consider. This is a topic that is not dissimilar from what we have just finished discussing regarding your ages. The healthier you are the more likely you can go into the economy and work to rebound financially from the divorce. On the other hand, if you are someone who is in poor health and is not worked in some time then the judge will be especially keen to award you the property in this divorce given the difficulties you would have entered the workforce and early a similar amount of property. Remember that a family court judge would be concerned with your well-being in the period immediately following the divorce. Therefore, having been able to meet your financial obligations after the divorce will be difficult based on your health then the judge may consider this factor a great deal more than any other that we have discussed. Long-term chronic illnesses and impairments can be especially important in this regard.

In general, a judge will be interested in each of your abilities to enter the workforce after a divorce to earn income and support yourself independently. If both you and your spouse have always worked and earned a similar income then this factor isn’t an especially important period, however, if you have been a stay-at-home parent for many years while your spouse has when the primary breadwinner then this could be a factor that weighs heavily on a judge when determining how to divide up Community property. The advantages that your spouse has in terms of business connections and opportunities, as well as marketable skills, can be incredibly important when it comes to the ultimate decisions about how to divide Community property. 

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 a child custody case.