Texas law recognizes that a marriage is a form of legal partnership. Like other types of legal partnership, marriage involves the management of property. Property comes in many forms, from real estate to retirement accounts to collectibles.
Determining who gets what during a divorce can be contentious. Yet, it’s a necessary part of the divorce process. If you’re considering divorce in Travis County, an experienced property division attorney can help you navigate this process.
In Texas, divorcing spouses divide community property and debt. Separate property and debt are not divided.
As Texas is a “community property” state, its courts assume that all property you and your spouse own at the time of divorce is community property. The only exceptions are items you or your spouse can prove are separate property. Items you and your spouse agree should be treated separately will also be considered separate property.
Community property is property acquired during the marriage. It doesn’t matter which spouse bought the property or which spouse’s name is on the title. Common types of community property include:
Similarly, “community debt” is debt you or your spouse acquired during the marriage. It may include mortgages, home equity loans, credit card debt, family business loans, and other forms of debt.
In Texas, the spouses must divide community property and debt equitably. “Equitable” does not always mean “equal.” An equitable split puts each spouse on roughly similar footing post-marriage, accounting for each spouse’s needs and ability to pay debts.
Exceptions to these rules exist. To understand how exceptions might apply in your situation, speak to an experienced Travis County family law attorney.
Not all property the spouses own is community property. One or both spouses may also have separate property. Examples of separate properties include:
Other types of property can be designated “separate property” as well. To call something separate property, one of two things must occur:
If the spouses don’t agree and neither spouse can prove an item is a separate property, the item is treated as community property, subject to division.
In some cases, separate property can become community property. For instance, if a spouse sells a house they owned before marriage (separate property) to buy a house for the family after marriage, the new house is likely to count as community property.
Similar to community debt, separate debt is debt one spouse acquired before the marriage. Like separate property, separate debt is not divided during a divorce.
If you and your spouse have a prenuptial or postnuptial agreement, this agreement will play a significant role in your property division during divorce.
Pre- and postnuptial agreements are intended to lay ground rules for property division and other questions in the event of divorce or if one spouse dies. Often, their terms guide discussions of property division during the divorce process.
However, issues can arise when applying the terms of a pre- or postmarital agreement during the divorce process. Examples of potential issues include:
Other questions can arise as well. It’s important to work with an experienced divorce and property division attorney to ensure that your pre- or postnuptial agreement’s terms are applied fairly and sensibly.
Many people face divorce, fearing a contentious legal fight. In practice, very few property division cases go to trial. Most spouses can work out their differences and reach an agreement through various forms of communication and negotiation.
Negotiation includes you and your spouse. It may also involve your attorney and your spouse’s attorney. “Negotiation” is a broad term covering everything from conversations between you and your spouse to sit-down sessions with attorneys and expert witnesses. Many terms of a property division agreement are worked out in various forms of negotiation.
Mediation is a specialized form of negotiation. In mediation, you, your spouse, and your respective lawyers work with a third-party mediator. Mediators typically have experience in Texas family law and special training in mediation techniques. The mediator works to help you and your spouse find common ground, but the mediator cannot force any party to accept any terms. If you and your spouse cannot agree on mediation, the case continues toward trial.
If all attempts to create a divorce settlement fail, the case may go to trial. In court, the judge will hear evidence from both sides. The judge will divide your community property and debt in a way that the judge decides is “just and right” under the requirements of Texas law. Both parties must abide by the judge’s decision.
Untangling questions of property division, spousal support, and child support can prove challenging, as all three involve a couple’s assets and debts.
Property division looks at what the spouses currently own. Property division seeks to divide those assets and debts in a “just and right” manner.
Spousal support, once known as “alimony,” seeks to ensure that one spouse won’t be left destitute as a result of divorce. Spousal support may be paid to (or paid by) either spouse, and it is often temporary. For instance, spousal support may be paid until the receiving spouse completes college or finds a job.
Whether spousal support is paid and how much can be affected by property division decisions. For example, if a spouse with no earning opportunities has considerable assets in separate property or receives a significant share of the community property, the higher-earning spouse may pay less support or no support.
Child support belongs to the child, even if money is paid into an adult’s account. Child support amounts are calculated using a formula in Texas state law. Property division decisions do not affect whether a child is entitled to receive support or how much the child may receive.
Because these questions overlap, it’s important to clarify them with the help of a dedicated Travis County divorce and family law attorney. Your lawyer can help you navigate these questions to protect your needs and those of your children.
Other questions can arise during property division as well. Common challenges include:
You may have other questions as well, especially about your specific situation. Ask a lawyer these questions as soon as possible. While your friends and family can provide essential emotional support during this time, they can only provide advice based on their own experiences – which will not be identical to yours. It’s vital to receive legal help that focuses on your unique circumstances, needs, and plans.
Property division can be contentious. Even when you and your spouse generally agree, executing the division can be complex. The right divorce attorney can guide you through the divorce process so you know what to expect at every step.
At the Law Office of Jason Wright, our caring Travis County property division attorneys are dedicated to supporting our clients with our knowledge, experience, and understanding. Contact us today to schedule a confidential consultation.
“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
To get in touch with us, give us a call at 512-884-1221 or submit the form below. We are committed to zealously working to find the solution that is best for you and your family.
