Mine, Yours, and Ours: Community Property and Divorce in Texas

Under Texas law, community property is defined as all assets that a couple acquires during the course of their marriage. It does not include:

  • Property that each spouse owned while still single
  • Inheritances left to one spouse only
  • Gifts provided to one spouse
  • Recoveries for personal injuries, with the exception of any awards for lost earnings

Texas is one of nine community property states, meaning that all marital property is assumed to be owned equally by both spouses and must be divided evenly in the event of divorce. Judges follow the “just and right” principle when distributing marital property, which does not always add up to a crisp 50-50 split.  Factors taken into account include:

  • which spouse has primary custody of the children
  • the earning potential of each party
  • whether or not adultery, abusive behavior, and other negative factors ended the marriage

In most situations, the distribution will correlate with an even split, but judges can vary at their discretion. The objective is to be fair, not mathematically precise.

Marital Property: a Broader View

Marital property is not confined to purchases and acquisitions that a couple makes together. A lot of married people think that buying something and registering it in their name only keeps it separate and not subject to division during a divorce. The reality is that if you purchase a house, car, or other assets while married, it’s communal, regardless of whose name is on the deed.

Any interest that one spouse accumulates in an employee benefit plan such as a pension or profit-sharing system is also community property. Like other assets, they do not have to be divided on an exact 50-50 basis. For examples, if both the husband and wife have their own pensions or retirement accounts, the court may let each spouse keep their own account, especially if the value of each one is similar.

Perhaps the most challenging asset to divide in a Texas divorce is a business or professional practice. Even if one spouse owned either one prior to getting married, any developments that took place afterwards are community property that must be split accordingly. Business appraisers and certified public accountants are usually hired to determine the value of this kind of asset and prepare a report that will guide the court’s decision.

When Properties Commingle

When assets are commingled, separate property can become part of the marital estate. For example, if the husband receives a gift of money from a relative and uses it to repair the marital home, that money joins the value of the home. To preserve the separate identity of each spouse’s property, it should be maintained in its own financial account or be titled to one spouse only (in the case of property acquired before the marriage).

Educating yourself on how Texas law defines and distributes marital property is essential for anyone contemplating divorce. The Frankfurt Law Firm, PLLC will advise you on your rights in this regard and help you preserve as many assets as possible once the divorce action finally commences.

Look Before You Leap: 8 Things Every Couple Should Know Before Getting Divorced in Texas

Choosing to get a divorce is one of the most difficult decisions anyone will ever have to make. While there are many factors that need to be considered, the legal aspects of a divorce should certainly be known before moving forward, and it is essential that you understand the nuances of the jurisdiction in which you are considering a divorce. Every state has its own laws on how a divorce can and will be handled, so you should familiarize yourself with those procedures in order to understand what to expect. The following eight items, for example, should be fully understood by any couple considering divorce in the state of Texas.

No-Fault Divorce

The laws in Texas allow for a divorce to be listed as no-fault, but unlike many other states, there is also the option to list who is at fault and why. The courts can take fault into account when dividing assets, so in many cases it is very smart to identify the party that caused the divorce.

Types of Fault

When filing an at-fault divorce, the reasons that can be listed as grounds for divorce can include adultery, cruel treatment, abandonment, one party has been confined to a mental health facility (for a minimum of three years), incarceration for one year or longer, or living apart for three or more years.

Divorce Takes Time

In the state of Texas, couples cannot get a divorce finalized for at least 60 days after filing the papers with the courts. Many divorces will actually take significantly longer due to the complexity of the process.

Dividing Assets

Texas is a community property state, which means that the courts begin the process of splitting assets with the assumption that all assets earned or acquired by both spouses during the marriage are owned equally by the two. If some assets should be considered separate property, the parties must present clear evidence to support that claim.

Texas Residency

In order for a couple to file for divorce in the State of Texas, at least one of them must have been a resident for a minimum of six continuous months. At least one of the spouses must have also been a resident of the county in which they want to file for divorce for at least 90 days.

Potential for Permanent Spousal Support

Spousal support (aka alimony) can be awarded, and in some rare cases it can be awarded on a perpetual basis. In order to be awarded permanent spousal support, the receiving spouse must meet one of four conditions:

  • Violence – The receiving spouse must be the victim of family violence within the past two years (the offending spouse must have been convicted of this violence).
  • Disability – If the receiving spouse is unable to adequately provide for their own needs by working because of a disability (physical or mental) and the marriage was 10 years in length or longer.
  • Child Care – If a child of the marriage has special needs that require a parent to stay home with them on an ongoing basis, and the marriage lasted 10+ years.
  • Inability to Earn – If the receiving spouse is unable to get employment sufficient to support themselves due to an inadequate labor market, and the marriage was 10 years or longer.

Alternative Dispute Resolution

While the courts need to be involved with the divorce process, they don’t need to make the decisions. Many couples are turning to alternative dispute resolution methods such as mediation to come to an agreement on as many issues as possible. This can save time, money, and heartache before, during, and after the divorce.

Putting Children First

When determining physical and legal custody of children, Texas courts always attempt to put the best interests of the kids first. This means they will attempt to make rulings that will foster a strong and healthy relationship for the children with both parents.

Never Divorce on Your Own

If you decide that divorce is the right decision for you, make sure you don’t try to go through it on your own. Contact Frankfurt Law Firm, PLLC to talk with an attorney and make a plan on how you should proceed.