How will my marital property be divided?
All of the property you two have gained during the marriage because of your earnings is commonly referred to as community property. Separate property is any property you owned prior to the marriage or have acquired through inheritance or gifts; in addition, certain types of monies recovered independently from lawsuits may be characterized as separate property.
Debts that are separate are (1) incurred prior to marriage and (2) incurred during marriage that were secured by the separate property of one spouse with a statement from the lender to look only to that spouse’s separate property for security of that obligation.
All separate property and separate debts are automatically awarded to the spouse whose name they are in. The other spouse has no claim on the separate property and no legal obligation for the separate debts.
Texas law also provides that, if you divorce in Texas and have property that you acquired while living outside of Texas and that property would have been community property if it had been acquired in Texas, the court shall treat it as community property.
In Texas, upon divorce maritial property is subject to what is called a “just and right division. Community property is commonly divided fairly evenly between the parties, just as are all community debts. However, if you do not agree on the division of property and the judge must decide, the judge 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 award that spouse reasonably 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. It is possible other disproportionate distributions of community property be made in uncommon circumstances, such as the disability of one spouse or of a child.
Also, if community assets have been used to make payments on one spouse’s separate property, the community 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 made payments on the dwelling from their joint earnings, the wife may be entitled to some reimbursement for those payments at divorce. Furthermore, if one spouse’s separate property has contributed to the community estate or to the other spouse’s separate estate, it’s the possible the contributing spouse could be entitled to reimbursement.
Determining whether property is community or separate and whether there is any right to reimbursement can 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.
Whenever possible, the community property should be divided during divorce so that each spouse receives a fair share. This is usually done by determining what each asset is worth and then dividing the 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 to 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 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.