Division of Property

Getting A Divorce In Texas: The Division Of Marital Property

One of the first questions when it comes to getting a divorce is “Who gets what?” Remember, just because an asset was in one spouse’s name, that does not make it his or her property. In Texas, marital property is classified in two ways: 1) community property and 2) separate property.

Unless rights to your assets have been varied or established by a prenuptial agreement, you can expect a court to view and characterize certain property as follows:

Community Property

All marital property is presumed to be community property. Furthermore, anything that is not proven to be separate property is community property. Broadly speaking, community property is property acquired during the course of marriage (by either spouse), and all community property may be divided by a judge. Some examples of assets that are generally considered community property are: income earned during the marriage; life insurance policies where the initial premium was paid from community funds; real property acquired during the marriage; personal injury awards for lost wages, lost earning capacity, and medical bills; and delay rentals paid by the lessee on mineral interests whether the mineral interest itself is separate or community.

Separate Property

Separate property is property acquired by one spouse before the marriage, or by gift or inheritance during the marriage. Separate property may not be divided by a judge. Some examples of assets that are generally considered separate property are: income from a trust; income from separate property (for example, rental property); increase in value of separate property; personal injury awards for pain and suffering or loss of consortium; and life insurance policies where the initial premium was paid from separate funds.

That said, the burden of proof to establish that certain property is truly separate property is considerable. In the course of marriage, lines between separate and community property inevitably become blurred. Untangling and tracing joint contributions to separate retirement accounts, payments made from one spouse’s separate funds to improve community property, separate funds commingled with community funds in joint bank accounts, etc., is difficult but certainly not impossible.

Keeping Score In Complex And High-Asset Divorces

Keeping score to assert your rights to your assets is not your job; it is ours. When couples with substantial property divorce, establishing cause, contributions and injuries can be a complex legal and accounting endeavor, so you need a divorce law firm with the resources to both build and present your case compellingly. The Jim Ross Law Group, P.C., has these capabilities, and we have a strong track record of winning favorable and fair divorce settlements for our clients. Consult a divorce attorney you trust to help you establish your contribution to the marriage, and determine the appropriate course of action.