How is property divided in a Texas divorce?
Dividing property can be one of the most complex parts of getting a divorce. The longer a couple is married, the more their lives are financially entwined. Sorting out who gets what can cause tension among divorcing couples, and in some cases courts have to step in to make decisions about property division. Texas residents should be aware of the state’s laws about property division and the factors the court considers when dividing property.
Texas is a community property state, meaning that the law presumes that spouses own all property acquired during the marriage equally. Not everything that spouses own at the time of marriage or acquire during marriage becomes community property, however. A spouse may have assets kept as separate property. In order to remove separate property from the assets divided in a property division, a spouse must show by clear and convincing evidence that either:
- The spouse owned the asset prior to marriage and did not commingle the asset with community property, or
- The spouse received the asset during the marriage as a gift or inheritance intended only for that spouse and did not commingle the asset with community property.
If a spouse does prove that an asset is separate property, the court may not distribute that asset as part of the property division.
Common pieces of community property are real estate, jewelry, art, retirement accounts, stocks and bonds and other investment accounts. The court must divide all of the community property in a property division, as well as community debts that the spouses amassed during the marriage.
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When a couple divorces, they may reach an agreement on how to divide community property, and then submit it to the court for approval. The court usually accepts such agreements without changes. However, when spouses cannot reach an agreement, the court must divide the property. The court begins with the presumption that community property should be split evenly, but has the discretion to distribute community property in any way it determines is fair. However, the court must have a reasonable basis for departing from the presumption of equal distribution.
Some of the factors that the court considers when determining how to divide property include each spouse’s:
- Earning capacity
- Skills or training
- History of acting as the couple’s children’s primary caregiver
- Separate property
Speak with an attorney
Divorce is stressful, and people should not try to handle the complexities associated with issues such as property division alone while going through such emotional turmoil. If you have questions about divorce, talk to an experienced Texas divorce attorney who can advise you how to proceed based on your specific circumstances.