If you and your spouse are contemplating divorce, and you have significant assets, you are likely worried how those assets will be handled in a divorce. Given the unique circumstances surrounding every divorce, you should consult an experienced divorce attorney about your specific situation. In the meantime, Fort Worth divorce attorney Jon Boyd discusses how marital property is typically divided in a Texas divorce.
The first consideration when trying to analyze how your assets will be handled in a divorce is to determine which assets are subject to division in the divorce. The law considers property to be either marital property or separate property. Assets acquired or earned during the course of the marriage are usually classified as marital property unless the asset was a gift or part of an inheritance. Separate property refers to assets owned by a spouse prior to the marriage and/or assets gifted/inherited during the marriage. Co-mingling, however, can convert separate property into marital property. Only marital property is potentially subject to division during a divorce.
Texas is a community property state; however, that does not guarantee an equal division of assets in your divorce. A court will typically start with a 50/50 division of community property in a divorce, but that starting point can move significantly either direction by the end of a divorce. A judge can consider several factors when forced to decide how to split marital property in a divorce. For example, while Texas (like most states) offers a no-fault divorce, proving that your spouse was at fault regarding the end of the marriage may convince a judge to award you more than 50 percent of the assets. Adultery, for example, on the part of your spouse could skew the property division in your favor if your spouse squandered the marital assets as a result of that affair. In addition, if your marriage is viewed as one “of longevity,” a court might shift more assets to your spouse if he/she worked in the home raising children and/or supporting your work outside of the home. Often, this results in a significant inequity in earning capacity which justifies an unequal division of marital assets in a divorce.
If either (or both) spouse owned considerable assets prior to the marriage, you may have entered into a pre-marital agreement. Defined as “an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage,” a pre-marital agreement may significantly impact how assets are divided in a divorce. Texas allows the parties to a pre-marital agreement to contractually agree to a number of things, including, but not limited to:
The rights and obligations of each of the parties in any of the property of either or both whenever and wherever acquired or located.
The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
The disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
Several important factors go into determining whether the terms of a pre-marital agreement will govern the division of property in a divorce; however, you should assume that the agreement will be a factor in your divorce if you executed an agreement prior to the marriage. Consequently, it becomes even more important to consult with an experienced divorce attorney as soon as you and/or your spouse contemplate the end of the marriage.
If you own significant assets and are contemplating divorce, contact an experienced Fort Worth divorce attorney right away at Boyd Family Law to schedule your appointment today.