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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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Texas Divorce Basics

Texas Divorce Law—The Basics

If you are considering filing for divorce in Texas, you probably have a lot of questions—here are answers to some of the most basic questions about divorce.

Do I Have to Give a Reason for Wanting a Divorce?

No. In Texas, you can ask for a divorce with or without stating the grounds. In a no-fault divorce, you need only advise the court that you have irreconcilable differences. You can, however, state grounds, such as adultery, cruelty, abandonment, felony conviction or confinement in a mental institution. If the court agrees, you may be able to get more than an equal share of marital property.

Do I Have to Be a Texas Resident? If So, For How Long?

Texas does not have jurisdiction over a divorce proceeding unless one of the parties has been a resident of the state for at least six months, and a resident of the county in which the action is filed for at least three months.

How Long Will It Take for My Divorce to Be Final?

That will vary, depending on a number of factors, including the ability of the parties to agree on custody, visitation, support and property distribution. At a minimum, however, a divorce cannot be finalized for at least 60 days after the filing of the complaint.

How Will Property Be Divided?

Property will be divided under the community property laws of Texas.

Is Alimony Available in Texas?

Texas law allows alimony in limited situations, typically where the recipient lacks the ability to be self-supporting, has a physical or mental disability, or cannot take care of himself or herself.

How Is Child Custody Determined?

Ultimately, the court must be satisfied that the custody and visitation arrangement is in the best interests of the minor children. The parties may agree to a specific arrangement, but the court may reject that agreement if it determines that it was entered into under duress or coercion, or is not in the child’s best interests.

How Does the Court Calculate Child Support?

Texas uses a formula that includes the income of both parties, the needs of the child, and any other special factors.

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.

Se Habla Espanol | ASL and ESL Services Also Available

What Is the Difference Between ‘Separate Property’ and ‘Community Property’?

“Community property” and “separate property” are the core concepts when it comes to property division during a Texas divorce.

The definition of separate property in the Texas Family Code is:

  1. “The property owned or claimed by the spouse before marriage”
  2. “The property acquired by the spouse during marriage by gift, devise, or descent” (“devise” means inheritance)
  3. “The recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage”

Separate property can change forms but remain separate property. For example, if the husband had a $25,000 savings account before the marriage, and he used the money to buy a car after the marriage, that car would be separate property.

The definition of community property under Texas law is, “Everything else.”

But let’s go into a little more detail. Community property is all the property acquired by either spouse during the marriage or while the divorce is pending. Community property also includes earnings from separate property. For example, if the husband kept his $25,000 in the bank instead of buying the car, the $25,000 would be his upon divorce but the wife would have a legal right to a fair share of all interest earned on the $25,000 during the marriage.

One item of property can be both separate property and community property. For example, a husband and wife buy a horse costing $5,000. They pay $2,500 from husband’s separate bank account that he had before the marriage and they pay the remaining $2,500 from a joint bank account containing their earnings during the marriage. Upon divorce, the horse would be 50 percent the separate property of the husband and 50 percent community property.

The Texas State Historical Association has an interesting article explaining the history of Texas community property laws.

Property settlement agreements are final, meaning that divorced spouses cannot return to court to ask the judge to divide community property in a different way. You need to make sure you get a fair and equitable distribution the first time around. Stewart Law, PLLC, located in Baytown, Texas, has provided legal counsel to men and women in divorce and child support matters for 8 years. For an initial assessment and consultation of your divorce case, contact our family law firm online or call our office at (281) 420-8020, at a reduced fee of $50.

 
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