Few issues in divorce are as confusing as how property gets divided. Marriage is as much an economic union as a romantic one, and couples can accumulate considerable assets in a short amount of time. In addition to a home, they might have retirement accounts, cash in a bank, other investments, vehicles, and other tangible pieces of property. All of this needs to be divided between spouses when they split.
As seasoned Galveston and League city divorce attorneys, we hear many misconceptions about the division of community property. For example, some people assume property is divided 50/50 without exception. Others think each spouse leaves with the property they paid with their salary. Neither assumption is accurate.
Texas identifies community property as all assets either spouse obtained while married. It’s really that simple—or almost. There are some narrow exceptions, such as if one spouse inherited an asset or individually received a gift. But most assets are community property, including wages or salary from a job, and anything bought with those wages
There is another big exception. A couple could have a valid premarital agreement which designates some assets as community or separate. For example, a small business owner might insist that all business assets are considered separate, so the business is not endangered in the event of divorce. A judge will follow the instructions of a valid prenuptial agreement.
What is a Just and Right Division?
Texas Family Code section 7.001 calls for a judge to order division of the marital estate in a “just and right” manner. But what does that mean? In a contested divorce, we can expect couples to disagree.
In practice, judges are guided by many factors, such as:
- Whether either spouse was at fault for the divorce, such as one spouse committing adultery
- Each spouse’s education and earning capacity
- Each spouse’s physical health and age
- The amount of separate property each spouse has
- Whether either spouse wasted community assets, such as gambling or spending money on a mistress
- Each spouse’s financial obligations
- Which parent will have custody of young children
- The Duration of the marriage
- Any other relevant factor
For example, a spouse with fewer separate assets could receive a larger share of community property, especially if they have been married for a couple decades. Conversely a spouse whose infidelity led to divorce could receive a smaller share of community property.
A Lawyer Makes a Big Difference
Because this standard is somewhat subjective, you would benefit from a lawyer’s assistance. We have appeared before many judges and know what factors they consider most important. Some judges will weigh infidelity heavily; others might not. Some judges are really worried about one spouse having few assets after divorce; other judges weigh other factors more heavily.
Contact Tad Nelson & Associates for assistance. We will meet to discuss what you hope to get out of your divorce, including what assets you want to leave with. We can make a strong argument on your behalf to a judge.