For most Texas divorces, property division is one of the hardest issues to settle. This is especially true if one couple is more financially stable than the other, and has more in terms of property and assets. Since Texas is a community property state, it is assumed that all properties and assets acquired during the marriage is owned equally by the spouses.Separate Community Vs. Community Property
In Texas, any property, assets, or financial holdings that belong to you before the marriage is considered separate property. This means that even in the event of a divorce, your ex-spouse does not have any legal claim to these items. There are some situations where separate property has lost its “separate character” and may be considered “community.”
The spouse claiming to have separate property is the person who is responsible for “tracing” his or her separate property and proving that in Court. The presumption is that all property of the marriage is community, and it is up to the spouse making the separate property claim to debut that presumption.
However, many of problems arise when it comes to community property. Say that one spouse was more successful in their work during the marriage, and that spouse was able to acquire several pieces of property, such as a beach house and vacation house in the mountains, as well as a couple of restaurants. Even though it was through this particular spouses’ hard work and acquisition that they were able to own these things, legally, they are considered community property. If the couple decides to get a divorce, these assets would be presumed to divided equally. For example, both parties get a house and a restaurant each. This is because Texas is also considered a 50/50 state and operates under the “just and right” rule, which means that generally, both parties get an equal share of the assets.
However, this does not automatically apply to each and every case, as there may be circumstances that may persuade a judge to award a bigger portion of the assets to one spouse. For example, if one spouse is awarded sole custody of the couple’s children, it would mean that they have a bigger financial responsibility. This could cause a judge to award them a bigger portion of the couple’s assets so that they have the financial means to support the children. Another example of an unequal distribution of assets would be in the event of domestic violence.Property Division And Division Checklist
If you and your spouse are getting a divorce, it is both your responsibilities to catalogue your assets. In general, there are several that you need to keep in mind, as these are usually the areas of contention during a property agreement:
Real EstateBoth spouses must list down all real estate that they own, along with market value, existing mortgages, insurances, and taxes. It is also important to give a background of the property, such as when it was purchased, how it was purchased, and when the mortgage will be paid (if any); If the real estate properties are furnished with furniture and appliances, it may also be necessary to list them down as well.
AutomobileBoth spouses must list down all automobiles that they own, along with market value, plate number, how much car payment is left (if any), as well as the make and model of each automobile.
Life InsuranceEven life can become a point of contention during property division. If you or your ex-spouse has any life insurance policies, you must both list down the police number, the name of the insurance company, the name of the insured on the policy, the value of the policy, the beneficiary, and the outstanding loans of the policy. If you have pension plans and retirement funds, these also need to be catalogued.
Bank And Business AccountsBanks and business accounts, of course, need to be catalogued as well. The name of the bank, the account number, the amount inside the account number and names associated with the account need to be listed down. If you own a business, this needs to be listed down as well.
Debt DivisionDebts are also part of the property division agreement, because any existing debts during the marriage will generally be split down the middle (there are exceptions). You must list down the name of your debtor, how much you owe, how the debt was incurred, and how much is paid toward the debt every month. Divorce attorney Daniella Lyttle and her professional staff will guide you through this process by helping you complete a Texas Sworn and Inventory and Appraisal.Other Factors To Remember
In general, community property in Texas is divided equally, but there are still extreme circumstances that can cause a judge to rule in favor of one spouse over the other. For example, if a spouse has a gambling problem and incurs large debts as a result of their gambling, a judge may order that spouse to shoulder all their gambling debt, rather than dividing it equally between the spouses. Likewise, if a spouse is found to have incurred debt because of an affair, the judge may rule in favor of the other spouse.
The length of a marriage can also be a consideration when it comes to a judge’s ruling. If the earning capacity between the husband and wife is significantly different (for example, a 20- year housewife versus a 20-year business owner), the judge may award a larger portion of the assets to the housewife so that she can have a means to support herself.
The marital home is usually a sticky point during a divorce. Who gets to keep it? If there are children involved, the judge may award the marital home to the parent with custody, in order to help keep the environment of the children stable and familiar. However, a couple can also agree to continue to own the property jointly until the child turns 18. The possibilities for settlement are endless outside of the courtroom, however, a Judge may be more limited in his or her ruling and can order property to be sold and split according to his or her judgment.
Settling property division issues can be a difficult and complex task, but with the help of divorce attorney Daniella Lyttle and the staff of Lyttle Law Firm, we will work diligently to help you work through the property division aspects your divore case. We are passionate about helping you protect your interests, and we can guide you towards the legal options that you have during a property division case.