Texas is a community property state. This means that when a couple divorces, the property, bank accounts, cars, jewelry, furniture, interests in retirement benefits, and all other assets acquired during the marriage are divided between the spouses.
It does not matter how the property is titled. The main exception is that property that was acquired before the marriage is considered separate property. Property that a man or woman acquired through an inheritance, by gift, and some personal injury payments is also considered separate.
The starting point in a Texas family divorce each is that each spouse is entitled to one-half (50%) of the marital property– and is also responsible for half the debts. The judge will also consider what is a fair, just, and equitable division of the property and obligations.
A fair analysis can reward one spouse with 55% of the property, 60%, 70% or some other figure. The final distribution may also provide for an even split of assets but provide that one spouse pay more than half the debts.
Some of the fairness factors a family court judge can consider (or the Texas divorce lawyers who are working to negotiate a settlement) are:
Texas does consider the grounds for divorce. If one spouse committed adultery, was cruel to the other spouse, abandoned the marriage, or was convicted of felony; then the other spouse may be entitled to a larger share.
2. Different Abilities to Earn a Living
Often one spouse may stay at home to help the other spouse earn a living. Even when both spouses work, one may have more work experience and more skills, be more in demand, or be able to attract a much higher salary than the other spouse. Some spouses have their own business which can generate a reliable income. These different abilities to earn money can be considered.
3. Different Educational Levels
As a general rule, the more education a person has, the more money that person is likely to earn.
4. The Health of the Spouses
If one spouse is disabled, is ill, is restricted in their ability to work and the other spouse is in good health, the spouse who is not well can receive more than a 50-50 split.
5. The Ages of the Spouses
Sometimes, one spouse is much older than the other spouse. The older spouse will generally not be able to work for as long as the younger spouse. On the other hand, the older spouse may be entitled to retirement benefits sooner. The ability to earn income due to age differences can be considered.
6. The Size and Nature of the Estate
The more assets there are and the greater their value, the easier it normally is to find a way to divide the assets and the responsibilities. In small estates where, for example, there is just a house with some equity in it and some bank accounts, the Texas family court may award one spouse a bigger share in order to help her/him stay in the home – especially if there are children.
The tax consequences can be a factor. In some cases, it may be more advantageous for one spouse to assume a bigger tax decuctible debt portion, for example, because that spouse is in a higher tax bracket.
Other considerations may shift the balance if the divorce might affect an innocent spouse’s rights. Practically, some of the separate property (already acquired, likely to be acquired, or in another state) can help the spouses and their attorneys work trade-offs to accommodate a non 50-50 split.
Which parents will be the conservator of the children and what type of Possession Order exist can also sway the split away from an even division. The Texas family court considers the best interests of the child(ren) in determining what is a fair division of the marital property.
Generally, the family court does not like to uproot children and force them to move to a different school district or even a different location in the same neighborhood.
Even the ability to pay legal fees can force an adjustment in the split. The court will be conscious of which spouse is not trying to settle matters and taking every dispute to court. The family court will also consider which spouse can afford a lawyer and which one can’t.
Call Scott M. Brown & Associates Today
To learn more about Texas family law property rights and all other family law issues, please phone the Texas family lawyers at Scott M. Brown and Associates by calling 281-972-4386 or filling our online form.
We have offices in Angleton, League City and Pearland.