One part of a divorce that can cause the most problems—as well as heartburn—is the division of marital (and sometimes non-marital) property. Texas is a “community property” state, meaning that anything brought into the marriage is considered to belong to both parties. In most divorces, the question is who will get the marital house and possibly a car.
But despite what most people have heard, the division of marital property isn’t always a 50-50 split.
Division Of Community Property
Community property is everything that two people acquire during their marriage. This can be anything from a car, a house, other real estate, a business, and other things of value.
If you and your spouse have agreed on how to divide your property, a judge will likely award based on your mutual agreement. This is especially true if you and your spouse are separated, have custody of your own belongings, and don’t jointly own anything valuable.
However, if you don’t, a judge will divide your community property and debt in a way that the judge decides is “just and right,” and may not necessarily be evenly divided. The presence of children in the marriage frequently sees them stay in the marital home until they reach adulthood, then the house can be sold to divide the proceeds.
Property division in a Texas divorce may be determined and influenced by factors such as:
- Fault—while not always used in property division, factors such as abuse, cruelty and other legal grounds are available to use in a divorce
- Health or Physical Condition of one spouse
- Compensation for losses to the innocent spouse—if one spouse will suffer as a result of the divorce, a judge can award compensation to the spouse
- Gaps in earning capacities of spouses
- Sizes of the separate estates
- Custody of children
- Misuse of community property, such as gifts to third parties and paramours (i.e., “the other woman”)
- Tax matters
- Businesses and other “unusual property” that isn’t easily split
Any of these matters will allow a judge to award as much or as little to each spouse as desired.
Community debt involves anything two parties signed up for during the marriage. This could be anything from credit cards to mortgages, home equity loans, as well as loans for vehicles or other assets.
NOTE: Student loans are treated differently—if the student used the loans to pay for his or her higher education, they will be considered separate property. But if the loans were used to pay for something that benefits both parties, it will be treated as a community debt.
The Issue Of Separate Property
The court considers everything that both parties acquired during the time of the marriage. As a rule, anything that was owned by one party before the marriage is not considered part of the marital estate, and won’t be decided on by the court.
Generally, these items are separate property:
- Property owned by one party before the marriage (i.e., house, car)
- Property that’s inherited (including a financial inheritance)
- Property received as a gift
- Settlement from a persona injury claim (except for lost wages during the marriage)
- Stock dividends and capital gains on investments made by one spouse with separate property
The court can only divide marital or “community” property. In order to keep property separate, the party must be able to prove that it was acquired before the date of marriage, or otherwise declared separate property and agreed to by both parties, for the court to be able to award it to them.
Debts acquired outside the marriage are also considered separate, unless both parties are involved.
The Reimbursement Claim
These claims are to remedy unfairness in a community property claim when compared to separate property declarations.
For instance, a frequent scenario is where one party purchases a house before marriage, but the house has a mortgage. If the mortgage is paid by the income of both parties during the marriage, it increases the property value at the expense of both parties. The court may award the non-owner spouse a reimbursement from the owning party for a part of the income used to pay the mortgage.
Let Fort Worth’s Family Law Attorney Help With Property Division
Wendy L. Hart is an experienced family law attorney helping people throughout Tarrant County who need help in marriage, divorce and other family law matters. Wendy understands the difficulties present in most divorce cases. We represent both men and women in Fort Worth. We’ll make sure you’re treated fairly, and will protect your interests and the rights and interests of your children.