If you are in Texas and are considering or in the middle of a divorce, a San Antonio divorce attorney can help you sort out how to divide your marital assets.

How Does Texas Law Handle the Division of Marital Assets in Divorce?

Texas law follows the principle of “just and right division” for dividing property in a divorce. This means that property is divided in a way that is not necessarily equal but is equitable, or “fair.” Texas courts do commonly split assets 50/50, but that is not a guarantee. They will first want an accurate value for all the assets, and then consider a number of factors before they make a decision about how to divide them fairly.

The first consideration, however, before assets are valued, is what is community property and what is separate property.

Community Property vs Separate Property

Community property is the assets and property that belong to both spouses equally. This includes income earned during the marriage, property or items acquired during the marriage, and also debts accumulated by either spouse. Community property is subject to division in a divorce, but separate property is not.

Separate property is anything that belonged to a spouse prior to the marriage or inheritance received by one spouse during the marriage. However, the spouse who claims any property is separate must provide proof that it is indeed separate, i.e., documentation showing when it was acquired or where it came from. If a spouse claims that funds are separate property, but those funds were commingled with marital funds, such as in a joint bank account, it will be challenging to prove that the money is separate.

Value of All Assets

Spouses must provide a list of all assets they own, proof of ownership, and the value; for example bank accounts, retirement accounts, real estate, belongings, and anything else that was acquired while the couple was married. The value of bank accounts or retirement accounts can be fairly straightforward to establish. Real estate or high-value items may need to be valued by appraisers to determine the value.

It may be necessary to call in financial experts to help figure the value of more complex assets, such as a business, investments, or real estate. Retirement benefits can be tricky to divide, as well. A Qualified Domestic Relations Order (QDRO) may be required to divide 401(k)s or pensions between spouses.

Value of All Debts and Liabilities

In Texas, responsibility for community debts must be shared in a divorce. Community debts are those acquired during the course of the marriage. This would include any credit card debts, mortgage or car loans, and any other liabilities taken on by either spouse while they were married. Separate debts are those acquired by one spouse before they were married and remain the responsibility of that spouse alone.

Division can be contentious here. If one spouse is certain they should not be responsible for certain debts, they may argue that the debt should not be shared; for example, if one person took out a loan for a personal project. In cases like these, the court will assess the nature of the debt, who benefited, and other factors before they make a decision.
 

Factors Considered by a Court in Division

Length of the Marriage

The longer the marriage, the more likely it is that the court will divide the property in a way that honors the long-term contributions both spouses to the marriage. Short marriages may see a more equal split of property. Longer marriages may see a less equal split, as the court takes into account the different contributions of each spouse. The court will consider not only financial contributions but also time spent raising children and caring for the home.

Earning Potential

A larger portion of community property may be awarded to the spouse with lower earning potential. This can happen if a stay-at-home parent sacrificed career advancement in order to care for children or promote the career of their spouse. That spouse may sometimes receive a larger share of the marital assets to compensate them for their contributions to the family.

Health and Age

The court may also consider if one spouse is not in good health or is close to retirement age. That spouse may then be awarded more property to account for their diminished earning ability. This especially applies if the other spouse is in better shape to physically support themselves.

Custody of Children

If there are still minor children in the home, the parent with custody may receive a greater share of the assets, especially those assets that will benefit the children’s well-being or financial stability. This usually applies to the family home or other forms of property that are directly connected to the children and their needs.

Misconduct of a Spouse

The court may, in certain cases, factor the misconduct of a spouse into the division of assets. This may especially be the case if one spouse’s actions have impacted the marriage financially. Texas is a no-fault divorce state, but evidence of misconduct such as abandonment or repeated adultery may have an influence on how the assets are divided.

Can Couples Divide Their Assets Themselves?

Many divorcing couples do work together to divide their marital assets and debts without involving the court. If they can negotiate their own agreement on how to divide the assets and debts, there is no need to call on the court for a decision. It is usually best for couples to sit down together with their attorneys and work out how to divide property and assets fairly.

Mediation

Some couples may use mediation to help them decide on how to divide their assets. A neutral third party facilitates discussion between the two sides in this situation, and the mediator may meet with both spouses together or with one at a time. They make no decisions for the couple but guide the conversation to help the couple find common ground and agree on how to divide their assets. Mediation can be a good option if couples are unable to work together on their own but do not want to involve the court.

Settlement Agreement

Once a settlement agreement is reached, then the attorneys can submit the settlement to the court for approval. The court will examine the agreement, and if it finds the agreement to be in line with Texas law, fair to each spouse, and in the best interests of any children, the court will make it part of the final divorce decree. If the court determines the agreement to be unfair, they will reject it and may at that point intervene to divide the couple’s assets.

Consult a San Antonio Divorce Attorney

It’s a good idea to consult a lawyer as soon as possible for help with protecting your financial interests. An experienced divorce attorney can help you identify all the assets and debts you and your spouse have. They are also familiar with the questions to ask to help you think of property you had not considered. They can also assist you with determining the value of assets and with finding financial experts to appraise the more high-value or complicated assets.

If you have questions or need help with your divorce, reach out to the Aida Rojas Law Firm in San Antonio, TX.