There is no doubt that divorce can be a highly emotional process. It is also, however, a practical and legal process. If you are contemplating divorce, you may be wondering what will happen to your assets in the divorce. To help prepare you for the divorce process, Dallas divorce attorney Rita M. Boyd explains how assets are divided in a Texas divorce.
Community vs. Separate Property
Over the course of your marriage, you and your spouse likely acquired numerous assets as well as debts. These assets and debts must be divided if you decide to end your marriage. How your assets are divided is determined by state law. Texas, for example, is a community property state. Other states use a “fair” or “equitable” distribution to divide property in a divorce. If you are planning a Texas divorce, you need to understand what the law considers to be community property and what is likely to happen to that property in your divorce.
In Texas, Texas Family Code Section 3.001 et seq. governs the division of assets in a divorce. That statute defines community and separate property. Community property “consists of the property, other than separate property, acquired by either spouse during marriage.” Moreover, the statute tells us that “property possessed by either spouse during or on dissolution of marriage is presumed to be community property.” If you plan to claim that property acquired during the marriage is not community property you must present “clear and convincing” evidence why the property should be treated as separate property.
Certain types of assets, however, are treated as separate property even if the asset was acquired during the marriage. Separate assets and debts remain the property/responsibility of the owner in a Texas divorce. Separate debts are debts that you, or your spouse, incurred prior to the marriage, while the following assets are examples of separate property for the purpose of the division of assets in a Texas divorce:
- Property owned or claimed by one spouse before the marriage.
- Property received as a gift or inheritance to one spouse during the marriage.
- Money received by one spouse for personal injuries that occurred during the marriage (not including money received for lost wages or medical expenses).
- Stock dividends and capital gains on the separate property investments of one spouse.
How Is Community Property Divided in a Texas Divorce?
Ideally, you and your spouse will reach an agreement regarding the division of your debts and assets that allows you both to avoid costly and time-consuming litigation. If an out of court agreement is not possible, however, the court will need to decide how your community property is divided in your divorce.
In that case, the law in the State of Texas starts with the presumption that all assets and debts acquired during the marriage belong to both spouses equally without regard to who purchased the asset or who incurred the debt. Despite the use of the term “community” property, community property does not have to be divided equally between the spouses in a Texas divorce. A judge must only make a “just and right” division of the assets. If your marriage includes minor children, for example, a judge might award more of the assets to the spouse who will be the children’s primary conservator. Likewise, if the judge is convinced that one spouse squandered assets because of an extra-marital affair or a gambling addiction, for instance, the judge might award less of the community property to that spouse in the divorce.
Contact a Dallas Divorce Attorney
If you have additional questions or concerns about how your assets and debts are likely to be divided in a Texas divorce, contact an experienced Dallas divorce attorney at Rita M. Boyd, P.C. to discuss your legal rights and options by calling 972-380-8000 to schedule your appointment today.