Texas Family Law Courts: Dividing Property in a Divorce

Texas is, as any family law attorney will tell you, a community property state. This means that there is a legal presumption in our State that if all property that is acquired by you and your spouse during the course of your marriage is presumed to be community property- jointly owned.

Texas is, as any family law attorney will tell you, a community property state. This means that there is a legal presumption in our State that if all property that is acquired by you and your spouse during the course of your marriage is presumed to be community property- jointly owned. Therefore, there is a burden on a divorcing spouse to prove that a piece of property- no matter what type of property- is actually separately owned.

We’ve defined what community property is in the context of Texas family law, which begs the question of what exactly separate property is. By definition, separate property is the property owned by a spouse prior to marriage or acquired by a spouse during marriage by gift or inheritance. Awards related to personal injuries are also included as separate property. What this all means to your divorce is that an item, if determined to be part of your or your spouse’s separate estate, cannot be divided in a divorce. Once the separate property is identified and decided upon by the judge in your trial it will be allocated according to which spouse it belongs to.

Proving separate property in a trial

This is one of the most important questions that you will encounter in your divorce if your case actually makes it to trial. Evidence, fairly overwhelming evidence at that, needs to be shown in order to trump the presumption in place that all property belonging to spouses in a marriage is considered community property. When the property was received as well as how the property was received is critically important.

Suppose that you had a piece of property that was sold and that proceeds of that sale were deposited into a jointly held bank account or otherwise invested. The concept of tracing would come in to play as the separately held property has since been turned into what could be considered community income. Often times you will need to either have kept great records of any transaction like this or have a expert witness who is available to testify to the history of the funds and where and how the property should be considered your separate property.

Split it all down the middle?

It is not so simple to just assume that if your case makes it before a judge that he or she will just take all the community property and split it down the middle, 50/50. Rather, a judge will take into consideration all of the evidence presented in your trial and make a “just and right” division of the community property based on that determination. Keep in mind that which of you or your spouse ends up with the children primarily plays a role in this determination as does whether or not either of you played a role in the dissolution of the marriage through infidelity or other causes. Prior bad acts can be punished by having your spouse be awarded a disproportionate share of the community estate.

A basic run-down of the factors that a judge will use to determine what a just and right division of the property looks like are:

• Special needs of you and your spouse. Are one of you disabled and unable to work?
• Separate property allocation. Did your spouse come into the marriage with a great deal of separate property whereas you have virtually none? This may sway a judge to award you with a greater than fifty percent share of the community estate.
• Differing abilities to earn an income. If your spouse is a doctor and you’re a teacher then his or her ability to earn a large income significantly outpaces your own. With this in mind a judge can even out this disparity by awarding you a larger share of the community estate if he or she deems that appropriate
• Fault in the breakup of your marriage. I alluded to this point earlier in this blog post. If your cheating has caused your spouse to file for divorce then you may be looking at receiving a relatively small portion of your community estate. This is especially true if you spent community property funds on hotel rooms, meals and gifts for the “other man/woman”.

Putting a dollar value on the property in a divorce

An inventory and appraisement is typically one of the first forms that your attorney will ask you to fill out for him or her. This form asks you to list out each piece of property that you own, your spouse owns and your community estate owns and to estimate a value for it. This gives your attorney, your spouse’s attorney and the judge a good idea of what you believe to be in play for your divorce from a property standpoint. The inventory is a taken as an affidavit, meaning that you will sign your name to it and have it notarized before submitting it to the court. A judge will take these inventories and utilize them as evidence in your trial and will base his or her decisions regarding property in large part on what the inventories have to say.

Tomorrow’s topic- spousal maintenance essentials in a Texas Divorce

Stay tuned tomorrow for another blog post that covers an aspect of Texas family courts and family law.Spousal maintenance, or alimony as it is sometimes referred to as, is another popular area of the law that our attorneys are asked about with some frequency. We will break this subject down tomorrow and help you to understand the points that are important in a divorce case in Texas.

If any of the subject matter that we touched on today leave you with questions please do not hesitate to contact the Law Office of Bryan Fagan today. One of our licensed family law attorneys is available to meet with you six days a week for a free of charge consultation. Divorce is never easy, but having an experienced representative by your side through the process can help provide you with peace of mind.