Property Division

Property Division and Divorce

Every divorce involves division of property and debts. The basic steps in this process are:

  1. Determine what is community property and what is separate property.
  2. Determine the value of community property.
  3. Decide on a division of community property that is “fair and just.” In Texas “fair and just” is often a 50-50 property division; however, you can request a disproportionate share and courts will frequently award one spouse more than 50% of the community property.

 

What property is divided in a divorce?

The court can only divide and award the “community estate” in a divorce. The community estate consists of community property and debts acquired or incurred during the marriage. Community Property is presumed to include all property and income acquired by the husband and wife during the marriage (including income earned after a divorce is filed up until the divorce is actually granted). Separate Property is property owned by a spouse before a marriage or property a spouse receives during a marriage by way of inheritance or gift (including a gift from the separate property of one spouse to the other). If separate property, such as a rent house, generates income during the marriage, that income is community property.

 

How is community property divided?

The best way to divide community property is for the spouses to agree on a fair division. If the husband and wife cannot agree how to divide things, Texas law requires the judge to divide community assets and liability in a way that is “just and right.” This does not always mean that community property is divided evenly.

Division of community assets as part of a trial before a judge requires each side in a divorce to prepare an Inventory and Appraisement. Each side will file a Sworn Inventory and Appraisement that lists all property and debts (community and separate) and shows the approximate value or amount of each. Often, the two inventories do not agree.  The judge will use the Inventories as a guide to deciding the property division. During the trial, evidence will be submitted about the nature and value of property. Sometimes, the parties hire expert appraisers to decide what land or businesses are worth.

 

When will a Judge make an uneven division of property? 

The judge can award an unequal division of community assets and/or debts after considering all relevant factors that include:

  • Who was at fault in breaking up the marriage
  • The earning capacities and education of the parties
  • The parties’ ages and health, any special needs of the children; and
  • The separate property owned by either spouse

The two primary reasons that divorce judges will award one spouse more than 50% of the community property is a big difference in the ability to earn money in the future and fault in the break up of the marriage.

 

How are community debts divided?

Community debts are also divided by the court on a “just and right” basis. However, a divorce decree cannot rewrite a mortgage or loan agreement. If, for example, the judge decides the husband must pay a certain loan but the loan was taken in both parties’ names, the creditor will usually look to the wife to pay if the husband does not or cannot repay the loan.

This is a very brief outline of property division in Texas.  There are numerous other factors that can contribute to the division of property in debt, including Reimbursement, Reconstitution for Waste, etc.  It is imperative that you hire a lawyer familiar with the process and the law. Renken Law Firm, PLLC exclusively handles family law cases. We will aggressively pursue any avenue you request to ensure that your community estate is divided fair and equitably.

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