How Is Property Divided after a Divorce in Texas?
One of the most common questions divorcing parties ask in Texas, is “who gets the house?” During Texas divorce proceedings, property division is a main focal point. Texas is a “community property state.” That means that all the income earned and property attained during a marriage is regarded by the courts as community property or, to put more simply, property belonging to both spouses equally. Other community property states include California, Louisiana, Arizona, Wisconsin, Nevada, New Mexico, Idaho, and Washington. Here, we’ll explore how the courts divide property during divorce proceedings. Keep in mind that this is a complex issue and the following is general information. If you’d like more help or further information, then the Law Offices of Rios, Parada, & Seanez can help!
Property (and Debts) Belong to Both Partners
In a community property state like Texas, the court will seek to split the marital property and accrued debt equally between the two parties. The most common forms of property that must be divided at the time of divorce are real estate (i.e. the family home), vehicles, personal property like jewelry and art, and intangible property such as income and benefits. In some cases, the court may order an unequal division of property, which we’ll discuss further in another section. Otherwise, it will strive to divide marital property equally.
Separate Property
Property may be viewed as separate and belong to just one of the divorcing parties. In Texas, separate property refers to property that belonged to one partner before the marriage and was maintained as separate property throughout the marriage. The property might refer to an inheritance that one of the spouses received. A gift that one spouse gave to another is also regarded as separate property. Therefore, separate property can be obtained before or during a marriage.
Keep in mind that the court operates from a supposition that all the couple’s property is community property until it can be proven otherwise. Each partner must prove that certain items of property are, in fact, separate. Making the determination of whether property is separate or community is called “characterizing assets.” If a spouse can prove that one form of property is separate, that property will not be subject to division proceedings and will remain in the possession of the original property owner.
Texas Property Division Complexities
Dividing property equally isn’t always as simple as it sounds, and Texas courts have the discretion to alter the division of assets in a manner that could be constituted as unequal. However, the court is tasked to distribute community property in a manner that constitutes fairness.
Here’s where it can become complex: The age, education, and health of divorcing parties can impact the division of property during Texas divorce proceedings provided there is reasonable cause for the adjustment.
Before adjusting the property division, the court will consider factors such as:
Primary Caregiver Status
If one spouse is the primary caregiver for the pair’s children, that spouse may be awarded more property.
Earning Capacity
Property division may be decided in favor of one party over another where factors like earning capacity, skills, education level, health, and age are concerned.
Separate Property
If one spouse owns separate property, it could have a bearing on how the community property is divided. For instance, if separate property includes a house (an inherited home from a parent), the other spouse may be granted the house designated as community property.
Fault
If one spouse is shown to be at fault and the cause for the failed marriage, the division of the property may be shifted in favor of the blameless party. Infidelity, for example, would be regarded as the fault for a marital breakup.
The Negotiation Process
Texas courts will take any settlements that the divorcing parties can achieve into consideration when they make their rulings. Often, divorcing couples are able to agree on how to split up their property. One party may not want the home, for example. Or, one spouse may be able to retain their retirement benefits by forfeiting a vacation home like a cabin or cottage.
During divorce proceedings, the divorcing parties will have an opportunity to agree on aspects of the property division and may enter into negotiations with the help of their respective attorneys. Or, they may simply work out an arrangement and submit a marital settlement agreement to the court that includes the negotiated details. Typically, the court doesn’t balk at these arrangements and will honor them as a matter of course. However, if the parties are unable to negotiate a settlement, the court will make the final decisions on the matter.
What about Spousal Maintenance?
Spousal maintenance is separate from property division. Spousal maintenance (alimony) may be mandated in order for one spouse to meet the reasonable needs of another after the divorce is final. Spousal maintenance in Texas is not as prevalent as it was decades ago. Courts are less likely to award spousal maintenance unless one spouse has a disability and is unable to support themselves, one spouse is the primary caretaker of a disabled child, or the marriage lasted for more than 10 years and the requesting spouse cannot earn sufficient income. A bad act from a spouse such as domestic violence or squandering community property may also affect the court’s decision to award spousal maintenance to the non-offending spouse.
If You’re Going Through a Divorce, Our Law Firm can Help
In short, Texas law favors the equal distribution of property between divorcing couples. If a spouse wants to pursue separate property or spousal maintenance, they will need to demonstrate to the court why these things are warranted.
Divorcing in any state can be complicated. That’s why it’s important to have an experienced advocate at your side. Rios, Parada, and Seanez is a Texas law firm that focuses on family law. Our attorneys are experienced and will strive diligently to ensure that your rights are protected and to help you achieve your legal goals. Call us today to learn more!