In a divorce, if both spouses cannot agree to how property is divided, Texas family laws must be followed to determine a fair and equitable solution, the ‘just and right’ division. This process can be very complicated, highly contested, and an emotional roller coaster ride.
In Texas, property is categorized as community or separate property during a marriage. Community property is all property acquired during the marriage, that is not separate property, including income and retirement. Community property is subject to an equal split during a divorce. Exceptions to this 50/50 division include awarding a disproportionate share or larger share to one spouse, if that spouse has a lower earning capacity or if a spouse had any fault in the marriage relationship. Concealing, hiding, or moving assets may also be considered.
Further, separate property will be kept by the spouse who owned it prior to marriage. Separate property is defined under the Texas Family Code as: (1) property owned by one before the marriage, (2) property acquired by a spouse by gift, devise, or descent during the marriage, and (3) any compensation or settlement from a personal injury damages during the marriage. That is, all property one spouse had before the marriage, including vehicles, property, businesses, are yours to keep after the divorce. However, if the other spouses name is added to the title, given possession during the marriage, or helped pay for the property, then it may have become community property. Additionally, any income from separate property, during the marriage, is community property. If separate and community property are commingled in one bank account, the money will be traced back to its origination in order to determine the true nature of the property.
The standard to prove separate property is by ‘clear and convincing evidence’. Thus, it is always important to keep all documentation, for any and all property and debt, so there is no question as to whose asset or liability it is. Retirement accounts are also very complex to divide and may include both separate and community amounts that must be calculated. One should never have to handle a divorce on their own as divorces are difficult to deal with especially with emotions escalating, and can be highly complex. It is best to always seek a qualified attorney to help you through this process, ease your burden, and to protect all assets, in your best interest.
About the Author: Mala Sharma has been practicing family law and personal injury with her family at the Law Offices of Sharma & Associates, founded in 1997 with over 42 years of combined experience. Mala is a Board of Advocates for the Houston Trial Lawyers Association, Vice-Chair of the American Bar Association GP Solo YLD, member of the Houston Bar Association, President Emeritus of the Houston Northwest Bar Association, and prior board member of the South Asian Bar Association.
This material is available for informational purposes only and not for the purpose of providing legal advice. If you require advice on any particular legal question, you may contact Sharma & Associates at 281-893-8644 or by email at email@example.com to schedule a free consultation to discuss your case.