What divorcing spouses in Texas need to know about property division

Spouses divorcing in Texas should understand their options for dividing property, the relevant state laws and the factors that may complicate this process.

Every year, thousands of people in McKinney make the difficult decision to end their marriages. The San Antonio Express-News reports that in 2012, the last year with data available, over 80,000 couples throughout Texas sought divorces. For many of these couples, property division can be one of the most confusing and stressful aspects of the separation. This makes it crucial for spouses to know what to expect under Texas law.

Options for division

The property that spouses share may be divided through mutual agreement or the order of a family law court. If spouses can come to terms, they can distribute all of their property however they see fit. Similarly, if spouses have previously signed a valid prenuptial agreement, the agreement will determine the terms of the property division. Otherwise, a family law judge must order a "just and right" division of marital property based on several factors.

Legal guidelines

When dividing property, a court may only consider "community property," or property that legally belongs to both spouses. Separate property, which only legally belongs to one spouse, cannot be distributed during a divorce. Under the Texas Family Code, the following assets qualify as separate property:

  • Property that each spouse owned before the marriage
  • Compensation for personal injuries, with an exception for compensation for lost earnings
  • Gifts given to each spouse during the marriage
  • Inheritances that each spouse received while married

All other property is classified as community property and is eligible for distribution between both spouses. To decide the terms of this distribution, a judge may evaluate several factors. These include each spouse's health, earning power, employability and role in the breakup of the marriage.

Common complicating factors

The presence of complex assets often makes the property division process more complicated. For example, a professional valuation of marital assets may be needed if one spouse started a business or professional practice during the marriage. Certain assets may also require extra steps to distribute. For instance, some retirement benefits, including 401(k) plans, can only be divided through a specialized legal order called a Qualified Domestic Relations Order.

Property division can also be more difficult if one spouse has fraudulently depleted the marital estate. In these cases, a family law judge must determine the value that the estate would hold if the fraud had not occurred. Then, the judge must identify the portion of the "reconstituted" estate that each spouse would receive in a "just and right" division of property. Then, the judge can award an according portion of the actual remaining estate to the spouse who did not commit the fraud.

Navigating the division process

Property division is frequently a complex and contentious aspect of divorce. During this process, most spouses can benefit from protecting their interests by working with an attorney who has experience in this area of law. An attorney may be able to help ensure that property is characterized correctly and assist a spouse in seeking a reasonable final division.