When a marriage breaks down and the couple appears headed for divorce, one of the issues the parties start to worry about is who will get what assets in the coming divorce. In fact, it is far from uncommon for the parties to start fighting over the division of assets long before the divorce is even filed. One party may feel entitled to the marital residence while the party won’t budge on the investment accounts. If not curtailed, the jockeying for position with regard to the marital assets can ensure a contentious – and costly – divorce. Although every divorce is unique, a Texas divorce attorney explains how assets are generally divided in a divorce, as well as factors that may impact the division of marital assets.
The State of Texas is what is referred to as a “community property” state. This designation often confuses people who think that when a state is a community property state it means that all the couple’s assets are divided in half during a divorce. Not true. The first step during a divorce is to characterize assets as yours, mine, or ours. In legal terms, this means dividing assets into marital property and separate property. Marital property generally refers to all assets acquired or earned during the course of the marriage except assets gifted to one spouse. For example, the house you bought after you were married is likely marital property while the vacation house that you inherited while married is not marital property. Separate property refers to assets owned by a spouse prior to the marriage and assets inherited over the course of the marriage. The funds held in the bank account that you opened ten years prior to your marriage are likely are likely considered your own separate property whereas the account you and your spouse opened after the marriage would most likely be part of the marital assets. Separate property, however, can become marital property if you “co-mingle” the assets. For instance, that vacation home that your inherited could become marital property if you use the asset as collateral for a loan to purchase a marital asset.
Contrary to popular belief, the division of community property is not required to be a 50-50 division in the State of Texas. Absent factors favoring an adjustment, that is how courts will typically divide community assets in a divorce. Ideally, the parties to a divorce are able to reach an out of court agreement that divides the marital property. When that is not forthcoming, the court must decide how to divide the property. Certain factors will push the court to consider a split that is significantly more or less than a 50-50 division. Fault on the part of one party during the marriage may factor into the property division. Although Texas offers a no-fault divorce, if you prove fault on the part of your spouse, it could help you persuade the court to give you more than 50 percent of the assets. For example, if your spouse committed adultery, and spent marital assets on the other person, that might convince a court to order an uneven property split. Another factor that can play a part in the division of assets is the length of the marriage. A marriage of longevity may prompt a court to order a spouse more assets if he/she stayed home and took care of the children and house while the other spouse worked and climbed the career ladder.
If you have additional questions or concerns about the division of assets in a Texas divorce, contact an experienced Texas divorce attorney at The Law Office of Jon R. Boyd to schedule your appointment today.