Texas Divorce 101: Property Division
Divorce is one of those things that everyone dreads. But it doesn't have to be stressful and complicated. If you are getting divorced in Texas, you might want to take advantage of the benefits of being able to divide assets and liabilities fairly without having to go to court. There are many ways to do this, including mediation, collaborative law, and arbitration.
The main thing to remember about dividing property in a divorce is that the courts typically look at the value of each spouse's total net worth. When determining whether to award joint custody, the court considers the income of both parties and the needs of the children.
In addition, the court looks at the amount of debt each party owes to determine how much equity exists in the home. You can use this information to decide where to live and how to split up the household items such as furniture and appliances.
Property division is generally handled by the judge during the final hearing. However, if the parties agree to a settlement prior to trial, the judge will likely sign off on the agreement.Property Characterization During the Divorce Process
Community property laws govern how property acquired during a marriage is treated once it is separated. In some states, including California, New York, and Washington, it is automatically characterized as community property. In others, such as Florida, Louisiana, Nevada, and Texas, the court decides whether the property is characterized as separate or community property. If the court determines that the property is community property, each spouse receives one-half of the total value of the couple's property. However, if the court characterizes the property as separate, each spouse owns his or her own property.
In many cases, the characterization of property is determined based on the date the property was purchased. For example, if the Husband purchases a home while he is married, the court will consider the purchase to be the Husband's separate property because it was purchased prior to the marriage. Conversely, if the wife purchases a home while she is married, the court considers the purchase to be community property because it was purchased during the marriage.
The community property system is designed to protect both spouses against another spouse's financial mismanagement. A spouse cannot hide money, investments, or income earned during the marriage from the other spouse simply by placing the funds into a joint account. Instead, the community property system requires that the earnings remain under the control of both spouses and that neither spouse can spend the money without the consent of the other.Separate property
A person's separate property includes his or her own labor, skill, talent, education, experience, and all other assets brought into the marriage by either party. A person's separate property also includes any interest in real estate or tangible personal property used by him or her in connection with his or her trade or profession. This definition excludes any property acquired during marriage by gift, devise, descent, survivorship, or otherwise without tracing of ownership.
This definition applies to both spouses; however, it does not apply to marital property. Marital property is any property, whether real or personal, that belongs to both spouses.Comingling of Property
In Texas, community property is defined as being owned equally by both spouses during the marriage. Separate property, however, belongs solely to one party, regardless of whether it was purchased prior to or during the marriage. In some cases, it might be impossible to distinguish between separate and community property because the assets were acquired together. For example, if a husband and wife bought real estate together, or if a couple opened joint bank accounts, then it could become very difficult to determine what portion of those assets belong to each person.
If you want to know how to divide up property in a divorce, you must look beyond the legal definition of community and separate property. You must consider the facts surrounding the acquisition of the asset, including where it came from, how long it took to acquire, and the amount spent on the purchase. These factors can help you decide whether the property was acquired separately or jointly.Conversion of Property
In a divorce, the property owned by a married couple prior to the marriage is called "separate property." This includes assets acquired before the marriage, such as real estate, cars, savings accounts, stocks, bonds, etc. If you are thinking about getting divorced, there are many things to consider, including what happens to your separate property. There are three main ways to divide up the property:
- Equal Division - Each party gets 50% of the total value of the marital estate.
- Community Property - Both parties receive 50% of the total property value.
- Equitable Distribution - A third party is appointed to determine how the property is divided based on factors like fault, contribution, and need.
If you want to know how to handle your separate property in a divorce, contact our office today. Our family lawyers can help you decide whether you should keep everything separate or give half to your ex-spouse. We'll work out a plan that works best for you.Divorce Laws in Texas Regarding Property Matters
The above scenario illustrates how one marital estate (Wife's separate estate) may reimburse the other marital estate (Husband's separate estate) for money spent on assets that belong to the other marital estate. In other words, the Husband's separate estate could claim reimbursement from his wife's separate estate for the monies he used to pay off the mortgage on her house.
Reimbursement claims are common in divorce cases because property division is based upon what each party brought to the marriage, rather than what either party earned during the marriage. For instance, if the Husband had been working full-time since the date of the wedding while the Wife stayed home raising children, then Husband's separate estate may be entitled to a greater portion of the equity in the marital residence. However, if Wife worked outside the home while the Husband remained at home, then she may be entitled to a larger percentage of the equity in the home.
In determining whether to grant a request for reimbursement, courts consider several factors, including:
- Whether the payment was made out of a source belonging to the reimbursing estate;
- Whether the payment benefited the recipient estate;
- Whether the payment benefitted the recipient estate more than the reimburser estate;
- Whether the payment was voluntary;
The final step in the divorce process involves dividing up the assets and liabilities of the couple. There are three ways to do this:
- By agreement
- By trial
- By default
In Texas, you cannot force someone into a settlement unless they agree to it. If there is no agreement, then the case goes to trial. At trial, each party gets to present evidence about how much money he or she deserves. After hearing everything, the judge makes a decision.
If one spouse wants to keep his or her separate property, the judge will award him or her half of what belongs to the couple. But if both spouses want to keep some of their separate property, the judge divides the property in a just and reasonable way.Contact an Attorney Today
An experienced family law lawyer in Harris County, Galveston County, Fort Bend County, Montgomery County, Brazoria County, Houston, Sugar Land, Missouri City, and Stafford, Texas at Thornton Esquire Law Group, PLLC, can help you explain and navigate the entire divorce process. Contact us today at Thorntonesquirelawgroup for a free consultation.