Understanding Property Distribution In Your Divorce

Answering Your Questions About Divorce And Property

When there is little or no marital property, no children and no spousal maintenance, spouses can usually obtain a quick divorce by having an attorney draft a divorce agreement and having a judge approve it.

Most divorces, however, are quite different and far more complex. Issues that complicate divorces include considerable marital property (both personal property and real estate), family businesses, large or concealed debts, trust funds, real estate in other states, joint and separate bank accounts, investments, insurance, pensions and other assets.

It's important to understand how Texas handles these types of property in a divorce.

Community Property Versus Separate Property

In Texas, community property rules govern the division of property. However, Texas, unlike other community property states, does not have to divide this community property owned by the parties equally. The court is only required to divide the property in a "just and right" manner. Any separate property is retained by the spouse who owns it if that spouse has clear and convincing proof.

Usually, all earnings acquired during marriage and everything obtained with those earnings are community property. All debts incurred during marriage, unless the creditor was specifically looking to the separate property of one spouse for payment, are obligations of the community property estate.

On the other hand, separate property typically includes:

  • Gifts and inheritances given to only one spouse
  • Personal injury damages awarded to only one spouse, except for awards for loss of earnings
  • Proceeds of a pension that vested before marriage
  • Property purchased with the separate funds of a spouse
  • A business owned by one spouse before the marriage (although a claim for reimbursement by the community estate may arise under certain circumstances)

Conflict may arise when separate property is mixed with community property. Sometimes, one spouse may be able to identify which portion of the property is separate. One example of this is when a house is owned before marriage and continuing mortgage payments are made throughout the marriage. Otherwise if the separate property becomes mixed with the community property, and the two cannot be distinguished, the entire estate is presumed to be community property. Seeking the advice of counsel can be very helpful if you are faced with sorting out different assets.

Troublesome Assets

Certain kinds of property continue to create controversy during divorce, even under the division rules of the community property system. Divorcing couples need to be aware of these assets and the issues their division may present. Some of the most troublesome assets include:

In each case, complexities of ownership can complicate a divorce.

Martha Bourne Understands How Every Case Is Unique

Because the division of property depends on the complexity of your assets and liabilities, it is important to consult with a lawyer knowledgeable about family law for assistance if you anticipate the division of property is likely to be an issue of controversy in your divorce.

Board Certified Texas Family Law Attorney, Martha Bourne, has over 30 years of experience helping Houston with complex property matters involved in a divorce. She is happy to evaluate your situation and offer individualized guidance.

Call 713-581-8260 or online.