Division of Property in Austin, Texas Divorce Cases

Written By Chris Merritt

In Texas, during divorce proceedings all marital property is subject to what is known a “just and right division.” Community property is commonly divided fairly evenly between the parties, just as are all community debts.

Whenever possible, the community property should be divided during divorce so that each spouse receives a fair share. In an agreed property division the parties determine what each asset is worth and then divide all the marital property so that each person gets a relatively equal value share. When cash or other liquid assets are involved, it is not a challenge to make such a division. If an asset cannot be divided or the parties do not want to divide it, it can be given to one spouse and something else of similar value given to the other spouse. Parties often get into arguments about who gets the refrigerator and whether the bed is worth more than the lawn mower. Such arguments can cause an increase in attorney’s fees by an amount that is more than the actual property is worth, so for the best results divorcing parties should be prepared to be reasonable and willing to compromise in these situations.

Sometimes there is simply no way to divide an asset evenly. For example, the parties may own a home or a family business that comprises most of their community property assets. If one party is awarded the house, there is not enough community property to compensate the other with something else of equal value. This challenge can be addressed in multiple ways. The other party may be given a lien against the house to be paid off when the house is sold or over a set period of time; alternatively, both parties may continue to own the house together after the divorce with an agreement to sell it and split the loss or proceeds at a later date.

If you do not agree on the division of property out of court, then the judge must decide this issue at trial and he or she will have some discretion in dividing the property unevenly. If one spouse has considerably less earning capability that the other, the judge will likely take that into account and can reasonably award that spouse more than half of the community property. The judge may also rule similarly for an innocent spouse who has suffered from the other spouse’s abuse, mismanagement of community funds, or if adultery has occurred. Furthermore, it is possible that other disproportionate distributions of community property may be made in uncommon circumstances, such as the disability of one spouse or of a child.

Another important issue can arise if community assets have been used to make payments on one spouse’s separate property. In such instances the community estate could possibly have the right to be reimbursed for those expenses. For example, if the husband owned before marriage the dwelling that the spouses live in, and during the marriage the spouses together made payments on the dwelling’s mortgage from their joint earnings, the wife may be entitled to some reimbursement for those payments at the time of the divorce. Furthermore, if one spouse’s separate property has contributed to the community estate or to the other spouse’s separate estate, it is possible the contributing spouse could also be entitled to reimbursement of those expenses. Determining whether property is community or separate and whether there is any right to reimbursement can often be complicated. You may be asked a lot of questions about the date on which property was acquired, the source of assets, and the credit used to purchase. The more data you have to support possible separate property or reimbursement claims the better.

As you can see from these examples, many factors come into play during the just and right division of marital assets in Austin, Texas divorce cases. This is true whether you are attempting to negotiate a property settlement informally with your spouse in mediation or through attorneys or if the issue must be presented to a judge at trial.