Understand the Process: A Look at Property Division in Texas

October 11, 2012

Perhaps after child custody, the division of property is the most important issue to address when going through divorce. Your life after divorce will certainly be different than before and the assets you have entering post-divorce life can have a great impact going forward. Therefore it's important to understand how assets and debts are separated by the court if you and your former spouse cannot agree on a division yourself. Texas is a community property state, and the term community property relates to how the court identifies property to divide.

In Texas there are two ways to divide property during divorce. The divorcing couple may settle the property and debt issues themselves and sign an agreement called the Marital Settlement Agreement, which outlines the divided property. Or if an agreement cannot be reached, the divorcing couple may look to the court to settle property division issues. If a couple looks to the court to divide property, the court will follows Texas's community property rules.

Texas Property Division

In a property division case, the court will first categorize the divorcing individuals' property as community or separate property. Separate property is generally defined as assets or debts acquired by gift, by inheritance or before marriage. Items brought into the marriage remain separate property unless the property is commingled with community property. Separate property cannot be divided or awarded to the other party. Next, the court will identify what assets and debts are community property.

Community property is generally all property and debt acquired from the date of marriage until the date the marriage ceases, and assets and debts deemed to be community property will generally be equally divided between the two divorcing individuals. However, the courts in Texas also retain the ability to divide community property in a "just and right" manner under the circumstances so that the division is fair but may not be equal. Divorce cases that involve children may lead to an unequal division of assets, for example.

There are a multitude of factors the courts analyze when considering an uneven division of assets between divorcing individuals, including the primary responsibility of raising children, differences in earning capacities, differences in educational backgrounds, differences in health, differences in age, the needs of the former spouse, and the needs of the children after divorce.

In Texas, there are no special property division rules regarding the marital home, but a judge may lean toward keeping children in the family home. And, when it comes to the division of retirement accounts, the judge will approve any agreement between the parties whether the agreement is equal or not, but without agreement the judge will divide retirement accounts equally to reduce the effect on the value of the plans.

If you are contemplating divorce in Texas, contact an experienced family law attorney who can outline and guide you through the conclusion of your divorce.

Article provided by Jim Ross & Associates, P.C.
Visit us at http://www.jimrossfamilylaw.com