Protecting Your Family's Future

How to Determine the Correct Division of Marital Property

How Marital Property Is Evenly Divided

While divorce can be complicated, the proceedings will be more straightforward if you and your spouse can agree on how to divide the marital property. On average, there have been around 80,000 divorces per year in Texas over the past decade, many of which have had to contend with the property division process. That’s why divorcing couples often hire family law attorneys who can provide valuable legal advice and representation.

How Property Is Divided During a Divorce

In most cases, the divorcing couple will make the decisions on their own about how the property and assets are going to be divided. Keep in mind that marital property also refers to any debts that have been incurred during the marriage. When a couple is making this decision without the assistance of the courts, assistance could be provided through a mediator. The mediator is a non-partial third party who can help a couple negotiate an agreement. When an agreement cannot be made, the dispute over property or assets will be sent to a judge.

While the majority of states determine who gets what based on equitable distribution, Texas divorce laws require assets to be divided based on whether or not they are classified as community property. When assets, a piece of property, or debts are considered to be community property, they will be divided evenly among both spouses. Any assets or debts that are classified as non-community property will be kept by the owner.

Who Gets to Keep the House?

marital propertyIf you and your spouse currently own a home, you may be wondering who will be able to stay in the house after the divorce has been settled. In the event that children are involved, it’s likely that the parent who is considered to be the primary caregiver will stay in the home with the children. If children are not involved, the name on the deed and title will determine who gets to keep the house. This means that it could be possible for this spouse to ask the other one to leave the home.


Difference Between Community and Non-Community Property

When it comes to Texas divorce laws, the division of marital property depends on whether the property is classified as community or non-community property. Community property refers to any earnings that were obtained during the marriage as well as any items or assets that were acquired from these specific earnings. For example, this could mean a sofa that was purchased during the marriage. Any of the debts by either spouse that were incurred during the marriage are considered to be community property debts.

Non-community property is considered to be any type of asset that is regarded as being the separate property of one spouse and not the other. Examples of non-community property can include pension proceeds, awards for a personal injury, and any inheritances that were initially received by a single spouse. If the couple purchases a home with the separate funds of one spouse, the home will be considered to solely be the property of that individual following the divorce. While a business that was owned before a marriage will be labeled as non-community property, some aspects of the business could be community property if the company’s value increased during the marriage.

When a home or other piece of property has been purchased with both community and separate funds, it’s likely that the entire property will be labeled as community property following the divorce. Given that there are many factors involved in the division of marital property, you may want to get in touch with one of the family law attorneys at Stewart Law PLLC. We will assist you during the process to make sure that you understand every facet of the law that pertains to your case. Legal counsel could look out for your best interests during the division proceedings.

If you have a good idea about how your marital property is going to be divided and would like to begin divorce proceedings, call our Baytown family law attorney at (281) 420-8020 to schedule a confidential consultation.

Divorce and Property

The Division of Property in a Divorce

It’s a common misperception that you only need to worry about the division of property in a divorce if you had a substantial net worth. Whether you lived in an apartment or a mansion, drove an old pickup or a Mercedes, lived from paycheck to paycheck or on a trust fund, you can still amass a substantial amount of marital property, and a lot of debt. When the marriage is over, you want to get your fair share of the assets and you don’t want to be responsible for more than your fair share of the debt.

In an ideal situation, you and your ex will amicably divide debts and assets, making adjustments if one of you keeps a large asset, such as the family home. Unfortunately, when you’ve struggled to agree in a marriage, it’s equally difficult to agree on the disposition of assets and liabilities when it ends. In Texas, if you can’t come to a resolution on your own, your property and obligations will be allocated under the state’s community property laws.

Under the community property laws of Texas, assets owned or used by couples in a marriage are identified as either community property or separate property. Any property owned by one of the parties before the marriage will be deemed separate property and will be returned to the owner as a part of the divorce proceeding. Assets that are purchased during the marriage are considered community property and their value must be divided equally between the parties. All property retains the character it had when acquired. Accordingly, a house purchased with a mortgage before marriage will remain separate property, even though it is partially paid for during the marriage.

There are limited exceptions to the community property rule in Texas:

  • Any property obtained by gift or inheritance is separate property
  • Any property purchased during marriage with funds earned before marriage is separate property
  • Any property that the parties legally agree is partitioned or exchanged by written agreement is separate property

Contact Us

At the office of Linda Stewart Law, PLLC, in Baytown, we bring more than 8 years of experience to clients in south Texas. To learn how we can help, call our office at 281-420-8020 or contact us online. We offer an initial consultation at a reduced fee of $50. We accept credit cards and will set up a payment plan, if appropriate. Our offices are open Monday through Thursday, from 9 a.m. until 5 p.m., and until noon on Fridays. Evening and weekend appointments can be arranged upon request.

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