When you and your partner arrive at the difficult decision to get divorced, you’ll be confronted with a wide range of important decisions. Of course, if you have children, their interests will come first, but the next thing you’ll want to figure out is how dividing marital assets will work.
Dividing marital assets can be extremely difficult, especially if you’ve been married for a long time. This is where advice from experienced property division attorneys becomes invaluable—protecting your assets on your own may be impossible, especially if your former partner gets an attorney and you don’t.
While a family court judge can certainly determine an equitable division of a couple’s assets, you might not like their idea of “equitable”, which is why it’s best to work it out with your former partner if you can and to hire an attorney to make sure your interests are represented. In fact, when it comes to the division of assets, lawyers are essential because they can ensure you get the best deal possible and that your ex-partner’s attorney doesn’t take advantage of you.
In Texas, divorce property division law is similar to some states but different from others. Here’s what you’ll need to know about community property division in Texas and why, when it comes to asset division, an attorney is worth the investment (rather than trying to represent yourself).
How Does the Division of Property Work in Texas?
Texas is one of 9 states with community property laws. This means that, aside from a few exceptions, any property you or your spouse purchased during your marriage is owned by both of you. Many other states divide marital assets according to “equitable distribution” guidelines.
According to the law, the marital estate has to be split between you and your spouse based on what the court decides is “just and right, having due regard for the rights of each party and any children of the marriage.”
To put it simply, this means that a Texas judge is only required to make sure there’s a fair division of assets in a divorce—assets are not always split 50/50 in a divorce in Texas. This is yet another reason why you want to make sure you have an experienced property division attorney on your side who will fight for your rights.
What Happens to Property Owned Before Marriage in Texas?
Before the judge begins to divide your assets, they will first decide which assets are community property and which are separate property. According to the Texas Family Code, separate property includes:
- Assets owned before you were married
- Assets you received while you were married from damages awarded in a personal injury case
- Anything you acquired during marriage as a gift (this can be from a third party, but it can also be from your spouse)
- Anything you inherited
- Anything that was protected by a premarital/prenuptial agreement or post-marital agreement
Any other assets will be treated as community property. If you believe that something you both own is yours, it’s your duty to provide proof that it’s separate property and not community property—if your spouse or spouse’s attorney claims that something is community property, and you can’t prove otherwise, the judge will likely rule in their favor and force you to split that property.
Are Separate Bank Accounts Marital Property in Texas?
For a bank account to be classified as separate property, you must have opened it before the marriage, and it must have been in your name during the entire length of the marriage. If you received money that would normally be considered separate property, like an inheritance, and kept it in such an account, there’s a high likelihood that a judge would agree that this property is yours.
However, things can get tricky if funds that would normally be considered separate are deposited into a shared account or used to buy shared property. It can become just as tricky to figure out who owns what if money from your income and theirs is being deposited into an account that’s only in your name or theirs.
This is yet another reason that, when it comes to the division of assets after separation, hiring a community property attorney is so critical—they can help you navigate these nuances so that you can get the best outcome possible.
The Value of Prenuptial Agreements and Post-Marital Agreements
When property like separate incomes are placed into the same account, or comingled, it can be extremely difficult to classify and separate. Addressing issues like these in advance by hiring a property division lawyer to write a prenuptial agreement or a post-marital agreement can help designate your property as community or separate.
In addition, these agreements make both you and your spouse more aware of commingling issues so you can avoid mixing assets, stopping these kinds of disputes before they can start.
Who Controls the Division of Property in Texas?
Ultimately, only the judge can truly control the division of property in Texas. However, it’s possible to get around this with a mediator as judges in Texas are often required to abide by a mediated agreement, even if they personally believe the division of property is not fair and equitable.
If mediation is not possible or fails, a community property lawyer can help you with some of the following factors that a judge will consider.
Custody of Minor Children
Providing for the welfare of children is expensive and, although child support covers some of the cost, it might not be enough. To help reduce the financial burden, additional property may be assigned to you or your spouse.
It’s also common for a judge to decide that the interest of the children is best served by having them live in the family home (and that this home not be sold). They may also decide to award the home completely to you or your spouse to ensure your children can continue to live in that home.
In these cases, the court will usually try to compensate the spouse who does not get to keep the home by awarding that spouse other property or assets. Note, that compensation won’t necessarily match the value or projected future value of the home.
Future Earning Capacity
When evaluating a divorce and the property owned before marriage by one or both spouses, the judge will also consider whether one spouse might have an unfair financial burden once they split (based on their earning capacity being very low or nonexistent).
If one spouse has a lower earning capacity because of factors like health, age, time spent out of the workforce, or education level, a judge may decide that one spouse is owed a more significant share of the community property. This is also a reason that a judge might award spousal support (alimony).
We’ll Fight for You to Get the Best Outcome Possible
If you’re looking for a divorce attorney serving Flower Mound, Lewisville, and the surrounding Denton or Collin County area who will fight for you to get the best possible outcome, contact us.
One of our experienced property settlement lawyers can help walk you through this uncertain time in your life.
Contact us today to set up your initial consultation or call us directly at (214) 646-3253.
