Part of any divorce involves taking the combined assets and debts of the marriage and creating two separate lives (and estates) after the divorce. To do that, the court must divide the assets and debts of the marriage according to the laws of the state in which the divorce occurs. If you are contemplating a divorce in the State of Texas, you need to understand what qualifies as community and what qualifies as separate property, so you know which assets/debts are subject to division. Toward that end, Fort Worth divorce attorney Jon Boyd explains what assets and debts are divided in a Texas divorce.
Understanding “Community Property”
When a married couple divorces, part of the divorce process includes the division of assets and debts. Each individual state decides what method is used for dividing property and debts. Some states use an “equitable distribution” method which requires a judge to divide the marital assets and debts equitably, or fairly, between the spouses. As you may have already heard, Texas is referred to as a “community property” state which is the other way in which a state can divide assets and debts in a divorce. In a community property state, such as Texas, the law presumes that all assets and debts acquired during the marriage belong to both spouses equally without regard to who purchased the asset or who incurred the debt. When dividing community property, a judge is also not required to consider who has more separate property. Contrary to what many people believe, however, the division of community property does not have to be a 50-50 split.
What Qualifies as “Community Property?”
When dividing assets and debts in a Texas divorce, the first step is determining what assets and debts qualify as community property. Texas Family Code Section 3.001 et seq. governs the division of assets in a divorce. According to that statute, community property consists of the property, other than separate property, acquired by either spouse during marriage. Moreover, the statute tells us that “property possessed by either spouse during or on dissolution of marriage is presumed to be community property.” To establish that property is separate property you must provide “clear and convincing” evidence.
What Is Separate Property?
Given that the definition of “community property” is essentially everything that is not separate property, you need to know what the law in Texas considers to be separate assets and debts. Texas law includes the following in your separate property:
- Property owned or claimed by one spouse before the marriage,
- Property received as a gift or inheritance to one spouse during the marriage,
- Money received by one spouse for personal injuries that occurred during the marriage (not including money received for lost wages or medical expenses), and
- Stock dividends and capital gains on the separate property investments of one spouse.
Separate debts are debts that you, or your spouse, incurred prior to the marriage. If an asset or debt is determined by the court to be separate, it cannot be divided in the divorce.
Dividing Community Property in Texas
Although the law considers most assets acquired during the marriage to be the property of both spouses equally, a judge is not required by law to divide the property equally. Instead, a judge must make a “just and right” division of the assets. In a divorce where there are minor children, for example, the court may decide to award a 60-40 split of the assets in favor of the spouse who will be the primary conservator for the children post-divorce. Because each divorce involves a unique set of facts and circumstances, it is best to discuss the likely outcome of your impending divorce with an experienced divorce attorney.
Contact a Divorce Attorney
If you are contemplating a divorce in Texas, it is in your best interest to consult with an experienced divorce lawyer immediately to ensure that your rights are protected. Contact an experienced Fort Worth divorce lawyer at Boyd Family Law by calling
