Divorce is never an easy process. It may seem that in the blink of an eye, the life you and your spouse had together is suddenly going down different paths. It may be the last thing you want to think about, but considering your legal options should be one of the first things you think about. Often times, divorce proceedings are drawn out over the property the couple shared and how it will be divided. The court will attempt to divide up all the property that it can from the bank accounts, to time the children spend with each parent, and property such as the house.
The court starts with a presumption that all the property earned or acquired by either spouse during the marriage is community property. In its simplest form, community property is property that is owned equally by both spouses. While Texas does recognize that some property is separate property, if you want to prove that certain property is yours and therefore should not be subject to being divided by the court then the spouse will have to do so by “clear and convincing evidence.” The court divides community property between the spouses in a “just and right manner,” which often times means that the court will split the assets 50-50 between the spouses. If you are about to begin a divorce or are already in the beginning stages of divorce there are some important things you should know about how property is divided in the great state of Texas.
Our dedicated attorneys will stand by your side throughout this emotional time, doing everything in our power to see that your needs and the needs of your children are met. We will work closely with you throughout every stage of your case, explaining the applicable laws, helping you understand your rights and responsibilities, and protecting your rights as a parent. To set up a free, completely confidential consultation, call the Queenan Law Firm at (888) 522-6500 today.
What is Community Property?
Texas is a community property state, which means that most, if not all, property that the spouses acquired during marriage belongs to both spouses. Separate property in contrast, to community property, is property that each spouse will keep when the divorce is finalized. Common examples of separate property are:
- Any property that one spouse owned prior to marriage,
- Property inherited by only one spouse,
- Property received as a gift by only one spouse, and
- Awards for personal injuries sustained by only one spouse,
- Because community property will be divided between the spouses, it is extremely important that each piece of property is properly characterized. If a piece of property is not property categorized it can be divided between the spouses even if the property only belonged to one spouse.
Texas law presumes that all property is community property, unless whichever spouse is claiming that it is not community property can prove by clear and convincing evidence that the property in question is not community property. Therefore, all marital property is presumed to be community property.
What Does a Presumption of Community Property Mean?
When the court is beginning to evaluate how it will divide property between spouses, I it will begin with the presumption that all property held by either spouse during marriage is community property. As noted above, Texas law defines community property as any property that is acquired or earned during marriage that is not designated as separate property. If one spouse wants to keep an asset free and separate from another spouse, they must prove by a clear and convincing evidence. Under the Texas Family Code, Sec. 101.007 – CLEAR AND CONVINCING EVIDENCE. “Clear and convincing evidence” means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.
How is Community Property Divided in Texas?
Anytime that a married couple divorces, Texas Law requires that their marital property be divided in a manner that is “just and right.” This means that the judge will attempt to divide the property in an equitable fashion, under the circumstances. As you can imagine, divorce proceedings can be very complex and oftentimes couples will argue over who the property should go to.
The trial judge will consider a wide variety of factors in determining what meets the definition of “just and right.” Each divorce case is different and unique therefore the trial judge has a considerable amount of discretion when they are making their findings.
There are a number of factors that the trial judge may consider in determining what is a One of the most common reasons why a judge may order a seemingly lopsided division of property is when there are children present. The judge will take into account the stress and rigor it requires to raise a child, as well as the differences in earning capacities between the spouses. It is not uncommon, in those situations for the judge to order a 55-45 or 60-40 division of the marital property. The facts that may result in a disproportionate division of the marital estate include:
- Fault as a reason for the failure of the marriage – In the event that one of the spouses is considered the “innocent” party they may receive a disproportionate division of the marital estate. The judge will make this determination based on an assessing how much at fault the “guilty” party is for the dissolution of the marriage relationship.
- Benefits the innocent spouse would have received from continuing in the marriage relationship – This determination will often stem from one spouse holding an advanced degree or license, such as a doctor or attorney, and the other spouse not having such a degree or education. A judge may find that the innocent spouse will stand to suffer more from the divorce than the other.
- Physical conditions and health – The judge will often consider the physical health of the divorcing spouses. This is particularly applicable when one spouse is suffering from an illness or disease. Physical health (or lack thereof) may affect the division of property between the spouses.
- Disparity of earning capacities – This can be directly tied to the benefits the innocent spouse would have received determination mentioned above. If there is a significant gap between the business opportunities and capabilities to make a living, the judge may order one spouse to pay more.
- Difference in ages – If one spouse is considerably older or younger than the other the judge may take into account the disparity in the ages of the parties. The judge can make this determination because a spouses age may have a bearing upon their ability to work,
The judge may consider many other factors when they are making their determination how to divide property. Because of the amount of factors that a judge can consider when they are making their determination, it is important that you zealously protect your rights and property.
Talk to Our Knowledgeable Dallas and Arlington, Texas Divorce Lawyer
At the Queenan Law Firm, we tenaciously pursue every case we handle. Regardless of whether you come to us for assistance with a divorce, a custody dispute, a conflict over property distribution, or you simply have questions about what to include in your prenuptial agreement, we will educate you about your responsibilities while advocating for your rights to the fullest extent possible. If contention exists between you and your spouse, we aim to use our litigation skills to resolve the dispute in your best interest and that of your children.
To set up a free legal consultation about your family law matter, call the Queenan Law Firm at (888) 552-6500. With more than 20 years of legal experience representing mothers and fathers throughout the Arlington area, our attorneys are always eager to put our knowledge and skill to work for you.