Dividing Property in a Texas Divorce
Texas is a community property state. At its simplest, property acquired during marriage by either spouse is community property, belonging to both parties--to the community. At the time of divorce, there are several very important ideas that must be understood so that you, who are going through a divorce, can understand how your property will be divided. A few of those are as follows:
First, under Texas law, it is presumed that all property that is owned by the parties in a marriage is community property, and that community property can be divided between the spouses in a divorce. This includes what is described by my clients as ‘my' paycheck, ‘my' retirement, ‘my' -fill in the blank-. If you can't overcome the presumption that a particular item is community, it can be divided. It's not just yours, but yours and your spouses.
Second, if you can prove by clear and convincing evidence that some item of property that you have is separate property, it cannot be divided by the court in a divorce but must be awarded to you. In order to overcome the presumption (see First above) the party wishing to confirm something is separate property must show the item was (a) owned before marriage by them, was (b) inherited by them, or was (c) a gift to them. Personal injury settlements are also separate property. Often both parties will have separate property to confirm, more often if the marriage is short-term, or if there were significant holdings prior to marriage. It is very important to have good records and do good research in order to prove up the separate nature of any property.
Third, community property is not divided 50/50, at least not by law. It has been my experience that most judges start at 50/50, as they should, and that many attorneys automatically assume (or at least say) that their client deserves more than the other spouse. But the law does not state it is to be an even split. Instead, the law says in Texas Family Code Section 7.01 “In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” What is ‘just and right' is up to the arguments and evidence brought out in mediation, negotiation, and if needed, at trial, where the judge is given wide discretion about how to make such a fair division.
These three items are only the very tip of the iceberg regarding community and separate property in Texas. Consulting and retaining an experienced family law attorney is a must in order to have a good outcome in the division of your property in a divorce.
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