How is Property Division Decided in a Texas Divorce?

Asset Division Attorney, Blog

property divisionThe Lone Star State is a community property state. However, Texas is not a “pure” community property state, like California. In the Golden State, almost all community property, or marital property, is divided 50-50, regardless of the facts. But in Texas, the community property law is basically a presumption. However, it’s also a very strong presumption that is difficult to overturn.

Nevertheless, both spouses still have important legal and financial rights in these situations. Much of the fight comes during the property classification process, as outlined below. So, it’s important to have a determined Fort Worth property division attorney who knows how to stand up for these legal and financial rights without unduly dragging out the process and driving up the cost of divorce.

Community vs. Separate Property

The general property classification rule is deceptively simple. Property, which is assets or debts, acquired before the marriage, by inheritance, recovery for certain personal injuries, or by gift is separate property, and everything else is community property. Community property is subject to the aforementioned presumption and division. Separate property is, well, separate. It only factors into the overall division in limited situations.

Unequal Division

If there is a reasonable basis to believe that a 50-50 division would not result in a just and right division of the estate, which is the legal standard in Texas, the judge may use the following factors when ordering an unequal division of assets or debts:

  • Relative Earning Capacities: This factor often comes into play during debt division. If Spouse 1 has significantly more earning potential than Spouse 2, Spouse 1 might have to shoulder an unequal debt payment burden. This finding could be subject to future modification.
  • Separate Property Award: We mentioned that separate property is only relevant in divorce proceedings for limited purposes. This is one of these purposes. If a disproportionate division is appropriate, the judge may consider a spouse’s total financial profile, not just part of it.
  • Noneconomic Contributions to the Marriage: Roughly a third of women are stay-at-home moms. In these situations, this factor, which is also known as the “homemaker factor,” could be significant. However, in most other cases, it is negligible at best.
  • Fault in the Breakup of the Marriage: Texas is one of the only states where adultery, cruelty, abandonment, and other spousal misconduct are relevant to the property division. Since there are usually two sides to a story and such spousal misconduct is rarely 100 percent one person’s fault, these disputes can get messy.

Retirement accounts work a bit differently. Only the value accumulated during the marriage is community property. If a wife’s IRA contained $50,000 on the date of marriage and $75,000 on the date of divorce, only the assets acquired during marriage are community property subject to division.

Reach Out to a Diligent Fort Worth Property Division Attorney

Property division is often either the simplest or most complex portion of a Texas divorce. For a confidential and initial free consultation with an experienced property division lawyer in Fort Worth, contact Orsinger, Nelson, Downing & Anderson, LLP by going online or calling (214) 273-2400. Convenient payment plans are available.