One of the best reasons to hire an attorney for your divorce case is to ensure your assets and property are being properly divided. Without an attorney present, you may fail to understand what property you have a right to. At Renken Law Firm out family law attorneys serve as property division lawyers in Texas divorce cases. Reach out to our team to learn more about your rights and to schedule a consultation with an experienced divorce attorney.
Texas is a community property state. Spouses equally own all of their community property, and they’re equally responsible for all community debts. However, unlike some other community property states (like California), in Texas community property isn’t necessarily split 50/50 when couples get divorced. The law simply says that judges must divide the community property in a way that’s “just and right” (more on that below).
So even though Texas is a community property state, its rules for dividing property in divorce are similar to those in states that follow the “equitable division” principle.
What Is Community Property in Texas?
Texas law defines community property as all of the property that either spouse acquires during the marriage, except separate property. It’s a broad category, and courts will presume that any item a spouse owns during marriage is community property. For that reason, it’s easier to use the definition of “separate property” (as discussed below) to figure out what’s excluded from Texas’ definition of community property.
The most common types of property divided at divorce are:
- real property like the family home
- intangible property like bank accounts, income, dividends, and benefits.
Common debts divided at divorce include:
- credit card debt
- mortgage payments
- rent owed, and
- loans for personal property such as cars and boats.
What Is Separate Property in Texas?
In Texas, separate property is:
- property owned or claimed by the spouse before marriage
- property acquired by the spouse during marriage through gift from a third party or the other spouse
- property acquired by the spouse during marriage by devise (such as an inheritance), or descent; and
- recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
Practically speaking, separate property is anything a spouse earned before marriage, as well as any inheritances, gifts, or personal injury awards the spouse receives during marriage.
Under Texas community property laws, courts must assume that any property possessed by either spouse during marriage and at the time of divorce is community property. A spouse must demonstrate that something is separate property by giving the court “clear and convincing evidence” that the item isn’t community property.
How Is Community Property Divided at Divorce?
As mentioned above, when a couple divorces in Texas, the judge must divide their property in a manner that is “just and right.” This means the division of property must be fair under the circumstances—it does not necessarily mean that assets will be split 50/50.
The factors Texas courts consider when deciding the “just and right” way to split community property include:
- fault in the breakup of the marriage (such as drug abuse, adultery, and waste of community assets)
- the disparity of earning power between the spouses
- each spouse’s health
- which spouse has custody of the child(ren)
- where the property was acquired
- tax issues
- each spouse’s education, and
- future employability of the spouses.
Texas law encourages spouses to reach an agreement out of court regarding the division of their property. When spouses have a written settlement agreement about property division, the court will review it and, if the court determines its terms are just and right, will incorporate the agreement by reference into the final divorce decree. If the court doesn’t approve the settlement agreement, the judge can request that the spouses provide a revised agreement or disregard the agreement and decide the matter after a hearing.
Can I Get a Portion of My Spouse’s Pension and Employment Benefits?
In Texas, when a married person accumulates an interest in a pension, retirement, profit-sharing, or other employee benefit plan during the marriage, it is community property and subject to division upon divorce. When a court awards a portion of one spouse’s retirement benefits to the other spouse, the attorneys will prepare a Qualified Domestic Relations Order (QDRO) to be sent to the employer, whom the court will order to distribute benefits to each spouse in accordance with the court’s order.
In the case of a cash account, such as a 401(k), the employer will usually disburse the funds in 30 to 90 days. In the case of benefits to be paid upon retirement, such as a pension plan, the court order will provide the employer with a calculation of a percentage to be applied when payments begin, and order the employer to send the appropriate amounts to the other spouse in accordance with the court’s order.
Like other community property assets, the court doesn’t have to divide retirement and pension accounts exactly equally between the spouses. For example, if each spouse has their own retirement account or pension, the court might simply award each of the spouses their own account—particularly if the amounts in each are relatively similar or the award of other community property makes up the difference.
Experienced Family Law Attorney in Houston, TX
Our team proudly serves the Greater Houston area. All marriages are different, making each divorce equally unique with its own set of needs that must be addressed. Our team is dedicated to helping you and your family move forward without legal matters complicating your life. Contact our law office to explore your options for traditional marriage divorce and common law divorce, and find out how we can help you resolve any legal problems you are currently facing.