In the divorce process we are taking one household and dividing it into two separate households. This is never an easy process and causes many people to worry about how much they will have to start over with. Although there are no winners in divorce we understand that your restart after divorce depends on your getting your fair share of the community property.
In the Decree of Divorce the marital property and debts must be addressed. The Decree of Divorce must divide the community property and debts and confirm each spouse’s separate property and debts.
The first step is to determine whether property or debt is separate or community.
Property and debt that is not acquired or created from or during the marriage is separate property or debt. It is owned separately by each individual spouse. Separate property includes:
- Property or debt acquired before marriage
- property acquired by will or intestate succession
- property acquired by third-party gift
- property or income arising from inter-spousal gift
- property recovered for personal injury
Property or debt that is acquired or created during the marriage, by either spouse, is community property or debt. There is a presumption that all property and debt that exists at the end of the marriage is community property and any claim of separate property must be proven by the spouse making that claim.
Sounds easy, right? If it is separate property the spouse gets to keep it — and if it is community property the Decree of Divorce divides it. However, sometimes it isn’t clear which it is because of the way the parties treated the property or debt. Furthermore, even if it is separate property there may be a reimbursement claim for marital money that was spent on the separate property or debt of one of the spouses.
Once we have determined how each piece of property and debt is characterized the Texas Family Code requires that all debts and assets that are community property be divided in a “just and right” manner. It does not say equally. There are many factors that a court uses to divide community property and debt such as:
- spouses’ abilities to support themselves such as:
- Which spouse has custody of the children
- Education and employability
- Size of separate estates
- Health
- Age
- Liquidity and income production
- spouse’s wrongdoing such as:
- fault
- fraud on the community
- tortious conduct toward the other spouse
- the financial costs incurred by a spouse while the suit is pending or after final judgment such as:
- temporary spousal support
- expenses paid to maintain community property such as:
- attorney fees and costs incurred
- tax consequences of division
- capital gains or losses
- income generating property
- tax penalties
- any other factor the court considers relevant to the situation – such as:
- length of marriage
- nature of property
Our experienced family law attorneys understand how important the division of property and debt can be. We can help you determine what your property division will likely be and help you negotiate a fair division of property. Schedule a consultation today to meet with one of our family law attorneys to get an evaluation of your case.
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