Texas law presents unique property division issues during divorce

February 28, 2013 (Press-News.org) Texas law presents unique property division issues during divorce

Article provided by Lindsay, Lindsay & Parsons
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Dividing assets during divorce is difficult. Not only does the couple need to take into account all the assets they own, they also need to determine a value for all these assets and any existing debts.

The couple also needs to follow the rules set out by state law in dividing the property if they cannot come to an agreement on their own. The laws of every state vary and are often complex. Texas offers an especially complicated set of issues during divorce, since it follows a unique version of community property rules.

Community property issues

Texas is classified as a community property state. This is a legal classification that essentially means all property gained during the marriage, referred to as marital property, is owned equally by each spouse. This means that if the property is split, it is often split 50-50 unless the spouses agree to divide the property in another manner.

It is important to note that Texas uses a unique version of community property rules. Instead of blindly applying the 50-50 rule, the court has some discretion.

State law allows the court to distribute the property in a manner it deems "just and right." As a result, the division may not be an exact 50-50 split. The judge may adjust the division based on considerations such as whether one parent is taking on sole custody of the children.

Categorizing property

Before the court can make a determination, it needs to classify the couple's property.

When making the split, the court generally considers only property that is classified as marital. Marital property can include all income, retirement plans, stocks, memberships, life insurance policies, bank accounts, businesses, cars, art and jewelry.

Separate property is often not considered in this determination. In most cases, separate property is composed of any asset held before the marriage, an inheritance or a gift.

Categorizing property as separate can be complex. If, for example, a piece of art or land was owned prior to the marriage but the value of that property increased during the marriage, the increase in value may be considered marital property.

There are many ways separate property can lose the protections of this status. It can happen if separate property is mixed together with marital property. If, for example, a husband received an inheritance it is often considered separate property. However, if this inheritance is deposited into the same joint checking account used to make mortgage payments for the family home, that inheritance may now be considered marital property. As a result, the inheritance could lose its protected status and be considered in the division.

Navigating through the complexities of property division during divorce is difficult, particularly in Texas. As a result, if you or a loved one is going through a divorce it is wise to seek the counsel of an experienced divorce attorney to better ensure your legal rights are protected and help increase your chances of receiving a fair settlement.