How Property Is Divided In A Texas Divorce
Step 1: Characterization Of Marital Property
Texas is a community property state. Spouses living in Texas have three marital estates: (1) the community estate (in which both spouses own an interest), (2) husband’s separate estate, and (3) wife’s separate estate. When a marriage is dissolved in Texas by divorce or annulment, the Texas Family Code requires the court to divide the spouses’ community property and confirm to each spouse his or her separate property, so long as the court has jurisdiction.
Separate property includes property acquired before marriage, by gift, or by devise or descent. Generally, property recovered by a spouse for personal injury to that spouse, including bodily injury, mental anguish, pain and suffering, is also separate property. In addition, property acquired under specific types of written agreements, for example, partition/exchange agreements, is separate property.
All marital property possessed by either spouse at the time the marriage is being dissolved is presumed to be community property. This is called the “community property presumption.” In order to rebut the community property presumption, a spouse has the burden to produce clear and convincing evidence that the property in question is separate property. If a spouse meets the burden of establishing an item of property as his or her separate property, the court is prohibited from awarding that item to the other spouse.
In some cases, the characterization of assets may have a profound effect on the division of marital property in a divorce case. It is important to have the advice and counsel of a knowledgeable, experienced family law attorney to marshal the testimony and documents you will need to meet the clear and convincing evidence standard and preserve your separate assets.
If you have a significant property that you believe may be separate property (for example, you owned it before marriage or received it by inheritance or gift) it is crucial that you seek the assistance of an experienced family law attorney to gather the best evidence available to protect your interest in that property.
Step 2: Valuation Of Marital Property
In addition to considering the character of property of the marital estate, valuation of the assets and liabilities of the estate is an important factor in evaluating a just and right division of the marital estate. Once again, you should seek the guidance of an experienced family law attorney so that qualified experts are retained to provide opinions on the value of real estate, business entities, annuities, defined benefit plans and other complex marital assets.
Step 3: Division Of Marital Property
Contrary to popular belief, under Texas law the community estate does not have to be divided 50-50. Instead, the court must order a division of the community estate in a manner that the court deems just and right, having due regard for the rights of both spouses and any children of the marriage.
Factors that may result in more than 50% of the estate being awarded to one spouse or the other include, but are not limited to:
- The length of the marriage
- Which spouse has custody of the children
- The spouses’ capacities and abilities
- Fault (cruelty, adultery and desertion)
- The benefits which the party not at fault would have derived from the continuation of the marriage
- Fraud in transactions involving community property
- Business opportunities
- Education and employability
- Health and relative physical conditions
- Relative financial conditions and obligations
- Disparity of ages
- Size of separate estates
- The nature of the property (whether it is liquid or income-producing)
- The tax consequences resulting from the division of the community estate
In order to evaluate whether the facts of your case may support a disproportionate division of your community estate, you should consult with an experienced family law attorney.
Put An Experienced Divorce Attorney In Your Corner
Characterizing, valuing and dividing marital assets and liabilities properly is essential to achieving a successful divorce settlement or property award at trial. Having the advice and guidance of an experienced and knowledgeable family law specialist to assemble the necessary evidence to protect your property rights is one of the best ways you can begin to prepare for your post-divorce future.
Many clients going through a divorce experience a roller coaster of emotions that may, at times, make it difficult to focus and keep the end goal in sight. That is where Kathryn’s sound, reasoned guidance comes in. Kathryn and her team will work with you to develop a plan for your case which will include exchanging necessary information and documents with the other side, analyzing the assets in your estate, recommending qualified experts to trace and/or value assets as needed, and formulating a settlement proposal for use during informal negotiations or mediation.
Kathryn believes in educating her clients so that they are able to make informed decisions every step of the way through settlement or final trial. Through her organized, reasoned and positive approach she hopes to provide her clients with the comfort that whatever the size of their estate, they are pro-actively moving forward to protect their future financial wellbeing.
Whether you have a high-asset divorce or one with more modest property, it is important to protect your property rights. Kathryn assists clients in Plano, Frisco, Prosper, Little Elm, Lewisville, Denton, Allen, McKinney and throughout the Metroplex in this regard.