What Property and Debt Is Divided in Divorce?
Property and debt division can be the most contentious part of a divorce. Each party is interested in ensuring their investments and assets are protected. A divorce attorney skilled in property division can work with the court to help you secure your property.
Texas is a community property state, meaning the court will decide how to allocate marital property based on what it thinks is fair. Marital property is defined as property acquired during the marriage. A court is not allowed to distribute property either party acquired before marriage.
Community vs. Separate Property
Both spouses own an interest in all property acquired during the marriage. A judge in the Texas court of law will assume all property accumulated during the marriage is community property unless it can be proven as separate property.
Separate property usually consists of:
- Property owned before the marriage;
- Property acquired by inheritance;
- Property acquired as a gift; and/or
- Recoveries related to personal injury claims.
Factors Affecting the Division of Property
A judge will consider many factors when determining the equal distribution of marital property. The most common reason for a judge not dividing the marital property 50/50 is if children are involved or there is a big discrepancy in earning capacity between the spouses.
Other factors a judge might consider are:
- Fault in the Marriage Failure: If one person was proven to be guilty of an affair or cruelty to the other person, the aggrieved party may receive more of the marital assets than the at-fault party.
- Benefits the Aggrieved Spouse Would Have Received If the Marriage Continued: The spouse that earns (or has the potential to earn) less could be entitled to benefits they will lose as a result of the divorce.
- Disparity of Earning Capacity: If there is a gap between the business opportunities available to each spouse—such as income disparities, earning capability, or associated facts—that could affect division of property.
- Physical Condition (Health): Physical health could affect the division of property.
- Difference in Age: A wide age gap between parties which affects ability to work and/or retirement benefits.
- Size of Community Estate: The size of the marital estate could affect the methods the court uses to allocate the property. The larger the estate, the more likely the court will make a 50/50 division of property.
- Gifts to a Spouse: Any gift purchased with community marital funds could be converted to community property, depending on the situation.
- Gifts to Third Parties: Spending money on a third party (like a mistress) could give the other spouse cause to claim an unequal division of property.
- Improper Use of Community Assets: Misuse of community property that results in the loss of community assets could be cause for unequal division of property.
- Custody of Children: Orders relating to the custody of minor (under the age of 18) children could affect the allocation of community property.
Contact Labovitz Law Firm
Our property division attorneys have extensive experience working with divorce courts. We can help you fight to gain the community property owed to you.