Section 7.001 of the Texas Family Code states that during a divorce or annulment, “the court shall order a division of the estate of the parties in a manner that is just and right, having due regard for the rights of each party and any children of the marriage.”
By using terms like “just and right,” the Texas Family Code seeks to give courts and divorcing spouses flexibility to determine how specific property should be divided while still recognizing that both the spouses and their children have certain rights – including the right not to be left penniless.
This flexibility, however, leaves many questions unanswered. Texas law allows divorcing spouses to create their own property division agreement. A court is likely to accept that agreement if it meets the requirements of the Texas Family Code. Yet with emotions running high and stress a daily reality, navigating property division during divorce can feel overwhelming.
That’s where an experienced Pflugerville divorce lawyer can help. At the Law Office of Jason Wright, our legal team is dedicated to effectively helping our clients navigate property division and other divorce matters.
“Which one of us gets the house?”
“I bought the boat before we married. Do I have to sell it and split the proceeds?”
Questions like these are common in a Texas divorce. Texas law provides some guidance for spouses as to how to address them.
Texas is one of nine US states with “community property” laws affecting divorce. Four other states recognize community property agreements or trusts but don’t have a community property law.
Texas family law courts will presume that everything the spouses own at the time of divorce – both assets and debts – belongs to both spouses. These items are known collectively as “community property.” The community property must be divided in a “just and right” manner as stated in Texas Family Code section 7.001.
Texas law presumes all property is community property. Yet the law also recognizes that not all property should be split between spouses during a divorce. Property belonging to one spouse is known as “separate property.”
Separate property may include:
Separate property stays entirely in possession of the spouse who owns it. It is not divided among spouses. Its value is not factored into the court’s decision about whether the property division agreement is “just and right.”
The first factor affecting the division of property in a Texas divorce is whether the division is “just and right.” What counts as a “just and right” division may depend on several additional factors, including:
Texas is a no-fault divorce state. To file for divorce, neither spouse has to prove the other did anything wrong. The spouse who files for divorce merely needs to affirm that at least one spouse wants the marriage to end.
Because Texas is a no-fault state when it comes to filing a divorce, some divorcing couples assume that fault will never be an issue in a Texas divorce. Texas courts may consider fault when looking at whether a property division is “just and right.” In these cases, “fault” may include behavior like adultery, abuse, or whether one spouse tried or did not try to work on the marriage before it was too late.
If you’re facing divorce, communication in your marriage has likely broken down – perhaps forever. The thought of sitting down with your spouse to reach common ground on how to divide assets and debts may seem impossible. Yet the thought of leaving those decisions to a judge may feel intolerable.
Fortunately, you don’t have to choose between another argument or a court ruling. There are several steps you and your spouse can take to reach an agreement before a court must intervene.
Known as “alternative dispute resolution,” these options provide a way to resolve issues privately and with less conflict. Alternative dispute resolution options can help you, and your spouse find common ground and create a property agreement.
Negotiation is the least formal option for resolving property disputes in divorce. In a negotiation, you and your Texas divorce attorney work with your spouse and their lawyer to agree.
You and your spouse control how long the negotiation process takes and what issues are addressed in negotiation. Your respective lawyers work to reach an acceptable agreement that meets Texas law’s requirements. Along the way, your lawyer can provide advice and insight based on experience handling similar divorce cases successfully.
Mediation is a more formalized negotiation method that relies on a trained mediator’s skills. A mediator is a neutral third party with training in Texas family law and skilled negotiation. The mediator’s role is to help you, and your spouse find common ground.
During mediation, you and your lawyer work with your spouse, your spouse’s lawyer, and the mediator. The mediator may not force you or your spouse to accept any particular agreement. However, the mediator will do their best to help you overcome objections and create an agreement you can both accept willingly.
Arbitration is a middle ground between mediation and a courtroom trial. Like mediation, arbitration is private一typically, only the spouses, their lawyers, and the arbitrator are involved, plus any necessary witnesses. Like a courtroom trial, an arbitration proceeding involves the arbitrator listening to evidence presented by both sides and their attorneys, then making a decision.
The parties to an arbitration may choose their arbitrator. Your lawyer can often provide suggestions. The parties typically agree to be bound by the arbitrator’s decision, whatever it may be. Arbitration may be the right choice when other types of alternative dispute resolution fail or when a particular issue needs evidence for clarity.
Most Texas divorces do not require a courtroom trial. When a property division question goes to trial, the court will issue a decision based on the evidence presented at trial. This decision will conform to Texas’s “just and right” requirement, but it may feel neither just nor right – especially if the decision requires either spouse to do something they fervently wished to avoid.
For this reason, alternative dispute resolution is popular in Texas divorces. Through negotiation, mediation, or arbitration, divorcing spouses can reach a property agreement they can both accept rather than being obligated to follow a court’s decree.
Property division must be addressed in all Texas divorces. Deciding how to split property can also be a stressful, contentious process – and it is often complex.
During this already stressful time, your Texas divorce lawyer can make property division issues easier to handle. Your lawyer will help you understand the law and your rights. Your lawyer will also help you reach a “just and right” property division that supports your best interests. By working with the experienced team at the Law Office of Jason Wright, you gain peace of mind and a foundation for a brighter future. Contact us today to learn more.
“Jason is very professional and friendly. He patiently explained everything as many times as I needed and made the law easier to understand. Gave great advice and listened to all of my suggestions walking me through if they would work or not.”
Jami L
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