Although Texas does not rank among the states with the highest divorce rates, the national average of nearly 50 percent of all marriages ending in divorce does put things in perspective. A number of serious considerations like child custody and alimony are directly correlated with divorce. Among issues like these, property division is usually a priority issue.
There are a number of misconceptions and myths surrounding the laws regarding property division in Texas. It is commonly assumed that marital assets are divided in half among the two spouses. This is not the case. In case of a divorce, a judge will be responsible for the “just and right” distribution of the couple’s community property. That means that by default, neither party is entitled to half of the community estate. Similarly, the court is not allowed to award the separate property of one spouse to another.
Marital property can be classified either as community property or separate property. The former consists of property acquired during the course of marriage, regardless of which spouse is in current possession of the property. Property claimed or owned by a spouse prior to marriage is said to constitute separate property. This can be gifted or inherited property gained during the course of marriage, as well as compensation received against personal injuries sustained by a spouse while married.
Texas law presumes that the property belonging to either spouse at the time of a divorce is community property. In order to circumnavigate this legal presumption, “clear and convincing evidence” of the property being separate property needs to be presented. The commonly adopted method of establishing separate property is to trace the asset from when it was acquired up to the present date.
Appreciation in the value of a separate property during the course of the marriage is usually considered to be a part of a spouse’s separate property. However, a spouse is allowed to claim reimbursement in case the community property was in some way responsible for the appreciated value of the separate property.
Property division is an inevitable result in a divorce. Consulting with an experienced family law attorney may be able to shed some light on the ways marital property can be divided, while keeping the various nuances of Texas divorce laws in mind.
Source: Houston Chronicle, “The myths of divorcing in Texas,” Trey Yates, May 7, 2014