Texas is a community property state, which means assets and debt acquired by either spouse during their marriage belong to both of them equally during their marriage. During a divorce, however, marital property is divided in a fair and equitable manner. That doesn’t always mean there is a 50/50 split.
Separate vs. Community Property
There can be two types of property involved in a Texas divorce: community and separate property. Whereas community property refers to things that belong to both spouses, separate property belongs to either spouse individually. Unlike community property, separate property isn’t considered for equitable distribution.
Typically, separate property is anything a person owned before getting married and avoided commingling with community property. For example, a savings account started five years before marriage can be considered separate property in a divorce. As long as the person who owns the savings account didn’t mix in marital property, such as income earned during their marriage, it can remain separate.
You Must Prove an Asset is Separate Property
The presumption in a Texas divorce is that all property a couple owns is community property. If you have separate property you wish to keep out of the division process, you must be prepared to prove it is separate property.
If you started a savings account before you got married, it can be considered your separate property if you can prove that you didn’t fund it with income made during your marriage. Likewise, if you bought a house before getting married, it can be considered your separate property if you can prove that your spouse isn’t listed as an owner on the title and that no community property was used to pay for its mortgage or maintenance.
Equitable Distribution of Community Property
“Equitable” sounds like it could be a synonym for “equal,” but it doesn’t mean equal at all. Equitable refers to what is fair, so an equitable distribution of community property is an asset division that a judge determines is fair to each spouse.
Although the courts endeavor to carry out a fair distribution of community property, it’s more than likely that one or even both spouses will be upset with the outcome. In many cases, the spouse in the weaker financial situation will receive a greater portion of community property and less responsibility for community debt. This is because it’s assumed that the other spouse with a higher income or more separate property doesn’t need as much help maintaining their lifestyle after divorce.
Other factors can contribute to an unequal distribution of community property, too. For example, a spouse who sacrificed education and/or career opportunities to maintain a household and raise children might benefit more from property division. Alternatively, a spouse who earned less or no income but didn’t contribute much else to the marriage may not benefit from the same consideration.
We Have Answers When It Comes to Divorce
If you have questions about getting a divorce in Texas, Kay Polk, Attorney at Law has answers. We can be especially helpful if you are considering divorce and aren’t sure how this process works. You can benefit from the knowledge and guidance of our experienced attorney, who can help you protect your interests during this difficult time.
Learn more during an initial consultation. Contact Kay Polk, Attorney at Law today to get started.
