How to divide property is one of the primary concerns decided in a divorce proceeding. The division of property includes the division of both assets (money, accounts, property, etc.) and liabilities (debts). Not all of this will be subject to division, of course. Only “marital property” is divided in a divorce. The first step in dividing property is determining what property must be divided in the first place. In Texas, we have two different types of property, “community” or “separate.” community property will be divided and separate property will remain in the ownership of the spouse to whom it belongs.
What Does It Mean That Texas is a “Community Property” State?
If you and your spouse can reach an agreement on how you wish to divide your marital property, the family law judge will almost always approve the agreement. If you cannot come to an agreement, the court will need to decide how the property will be split. Texas is in the minority of states when it comes to the approach regarding the division of marital property incident to divorce. While Texas is a “community property” state, it still follows the principle of dividing property according to what the court deems to be “just and right.” This means courts set out to split the property in a manner that is fair, not equal.
Texas courts will look to a number of different factors in order to divide the marital property in an equitable manner. These factors include:
- The relative earning capacity of each spouse
- Fault in the breakup of the marriage
- Each spouse’s level of education
- The future employability of each spouse
- The health of each spouse
- Who will have primary custody of the child(ren)
- Other factors relevant to the analysis
As previously stated, only “marital” or “community” property will be subject to division during divorce. This is, generally speaking, property acquired during the marriage and belongs to both spouses. There are some exceptions to this. There are some things acquired during the marriage that may still be considered “separate” property, including:
- Property inherited by one spouse
- Property gifted to one spouse
- Settlement proceeds from certain personal injury claims (not including the portion awarded for lost earnings during the marriage, or reimbursement for medical expenses, among other exceptions)
There is a presumption, however, that property acquired during the marriage is community property. It is the burden of the party claiming that it is actually a separate party to prove otherwise by a preponderance of the evidence.
Proving Your Separate Property Claim
While it may seem like a simple thing to prove that certain property was owned prior to the marriage or is otherwise qualified as separate property through one of the exceptions listed above, it can become very complicated. Married people often have joint accounts and put all their money into those accounts, including both separate property and community property. This is called the commingling of funds. When separate and community funds are commingled it can become very complicated to determine the character of the property. If you think you have a separate property claim, you should meet with a Texas family law attorney to determine what claims you can prove in court.
Texas Divorce Attorney
How your assets and liabilities are divided during your divorce will have a lasting impact on your financial future. Make sure your best interests are always being protected and contact the Youngberg Law Firm today. We are here to be your advocate through every step of divorce proceedings.