In Texas divorces, property division is often one of the most contentious issues.
Texas is a community property state. Under Texas law, all assets acquired by either spouse throughout their marriage belongs to each spouse equally, unless a prenuptial or postnuptial agreement provides otherwise.
This community property ownership system makes divorcing highly complicated.
Couples planning to end their marriage must find a divorce attorney specializing in Texas law to split their property fairly. Or, couples with assets that are acquired during their marriage, with an intent to keep such assets as a certain spouse’s separate property (such as a business created by one spouse), must find an attorney familiar with the requirements for drafting such an agreement to ensure that those assets are not included in the communal estate.
Understanding Community Property
All property and assets acquired during the marriage are automatically considered as community property, regardless of whose name is on the title deed or which spouse acquired the asset. This rule also applies to debt and income earned by either spouse while they remain married, and such funds or debts are not attributed to a specific spouse but as joint assets or liabilities of the couple’s communal estate.
Under Texas law, there is a presumption that in the event of a divorce the communal property should be divided equally between spouses, regardless of who purchased the property at issue or which party claims a more significant interest in such property.
However, gifts or inheritance received by one spouse during the marriage are excluded from the communal estate and are not classified as community property.
Likewise, any assets or property acquired by an individual before marriage will remain such spouse’s separate property and will be excluded from the communal estate.
How Is Community Property Divided?
The court typically decides how the community property will be divided.
Typically, Judges will divide assets according to their economic value and then split those assets equally between the separating spouses. For instance, if the marital home is awarded the home in the divorce then the other spouse will receive other pieces of communal property with a total economic value equaling the marital home’s value.
However, judges have the discretion to divide the property in the way they believe is fair and zealous advocacy is required to prevent an unequal and unfair distribution of these assets.
Judges are afforded a high-degree of discretion when determining how assets are divided between the divorcing spouses. However, the following considerations are typically used by judges to support a determination that the community estate should not be divided equally:
- If there is disparity between the education, health, or future employability of the parties that causes one party particular hardship;
- Whether a significant income or earnings gap exists between the parties;
- Does the individual with physical custody of the children require further assets for the support of such children outside of child-support payments;
- Was the divorce caused by the bad acts of a single party (e.g., adultery, domestic violence, or cruelty).
If, for example, one spouse is caring for a disabled child that requires costly medical attention, or that spouse is unable to seek meaningful employment as a result of raising the couple’s child, then the judge may award the caretaking spouse with additional assets to help that party maintain his or her current lifestyle while also ensuring that the best interests of the child will be met.
Marital Settlement & Prenuptial Agreements
While the court typically decides how to divide community property, some individuals understand the risks involved in leaving the final determination of such a decision to an unknown judge that may be unsympathetic to the sentimental value a particular asset has to you.
Such risks and unknowns can be avoided through pre- and post-marital agreements or marital settlement agreements.
Prenuptial agreements help uncomplicate property division during a divorce and are valid even in community property states. Generally, couples will enter a prenuptial agreement that will specify how all of the assets obtained throughout the marriage will be split in the event the couple separates.
Yet, even after the couple is married, such an agreement can still be made between the spouses through a post-nuptial agreement. A post-nuptial agreement can set forth the manner in which community property is to be divided in the event of separation. If property is acquired during the marriage that holds sentimental value to you, or if your business was formed during your marriage, the benefits of a post-nuptial agreement could protect you from losing that special piece of property.
These agreements allow a couple to decide on their own how they’ll divide their marital property in the event of a divorce. They can distribute assets wholly or sell them and then divide the proceeds from the sale evenly.
A person may also submit a marital settlement agreement to the court that sets forth the terms agreed to between the separating spouses on the distribution of community property. Generally, a marital settlement agreement will expedite the divorce process, as courts often accept such agreements without further involvement, and allows each spouse to move on in their respective lives in a manner that is cost-effective and less burdensome on themselves or their children
An experienced attorney is highly recommended for drafting or reviewing these agreements, and the attorneys at the Sullivan Law Offices are able to provide these services to meet your unique needs. If you have already entered into such an agreement with your spouse, or if you have been proposed such an agreement by your potential spouse, our office can review such agreements, provide recommendations or potential changes to the language of the agreement, and provide counsel to you regarding the terms of the agreement to make sure your rights are understood and protected.
Sullivan Law Offices – Your Experienced Divorce Attorneys in Texas
With over 35 years of experience in Texas family law, the Sullivan Law Offices provides legal services not only in divorces, but also in pre- and post-marital agreements, advising clients regarding the impact a divorce has upon the ownership of their businesses, and providing counsel to married individuals seeking to acquire an asset that they intend to keep as their separate property.
The Sullivan Law Offices provides our clients with zealous representation in the event of a divorce and utilizes the years of experience of our attorneys to prepare customized agreements that are drafted to meet your unique circumstances.
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