How Property Is Divided in a Texas Divorce
One of the most challenging aspects of a Texas divorce proceeding often centers on the division of marital property—the home, vehicles, and other personal property. Under Texas community property law, if the parties cannot agree on how to distribute assets, the court must determine an allocation of property that is “just and right.” In many instances, that means an equal split, but 50/50 division is not required.
Before determining how to divide property, the court first categorizes all marital assets. Certain items are considered “separate property,” including these:
- property one party owned before the marriage,
- proceeds of any personal injury verdict or settlement received by an individual spouse,
- property or cash one spouse received by inheritance or gift, and
- capital gains or stock dividends on separate property.
All separate property goes to the individual who received it. The other party receives no offset for separate property. All assets not deemed to be separate property are divided as “community property.”
Factors Considered in Texas When Dividing Community Property
Texas courts consider a number of criteria when determining what constitutes a “just and right” marital property settlement, including:
- how long the parties have been married,
- the age and health of both parties,
- custodial arrangements, when there are minor children,
- the extent to which both parties contributed to the acquisition of property,
- whether one party will receive alimony/spousal support,
- the current and potential earning capacity of each party,
- the extent to which either party dissipated or hid assets,
- tax consequences of dividing the estate, and
- the terms of a prenuptial or postnuptial agreement.
How Is Property Actually Divided?
Some types of community property are easily divided and others are not. Clothing, jewelry and similar distinctly personal items are typically given to the party who used them. If one party accumulated substantially more personal assets during the marriage, the court may grant a larger portion of non-personal assets to the other spouse, in the interests of a “just and right” settlement. If each party drove a specific motor vehicle, the court is likely to grant each party the vehicle they used. Again, if marital assets were used to purchase the vehicles, the court may provide an offset to a party driving a less expensive car. If there are payments remaining on a motor vehicle, the party receiving that car should refinance the vehicle in his or her name. Otherwise, both parties will remain legally responsible for the payments.
Because a house cannot be divided, there are generally two options:
- The property may be sold, with the equity divided in a “just and right” manner; or
- The property may be given to one of the parties. In such a situation, the court will typically balance out the distribution of marital assets by giving a greater portion of personal property to the party not receiving the house.
As with a motor vehicle, the party not receiving the house should ask the court to require the other spouse to refinance any mortgage and retitle the home within a specific period of time.
Contact the Divorce and Family Law Attorneys at Bailey & Galyen
At the law office of Bailey & Galyen, we offer a free initial consultation to every client. For an appointment with an experienced Texas divorce and family law attorney, contact us by e-mail or call our offices at 844-402-2992. We will take your call 24 hours a day, seven days a week.