Texas Property Division Lawyer Serving Dallas, Frisco & Plano Why You Need a
Texas is a community property state. This means that all property accumulated by a married couple, and all income they each earned during the course of their marriage, belongs equally to each one of them, thought they may each have separate property that remains their own separate property.
Lawyer for Property Division During a Divorce
Courts encourage divorcing couples to make their own decisions about how the property should be divided. When they are unable to do this, the court will analyze all relevant facts and make an ultimate property distribution order based on what “the court deems just and right.” This is why finding a lawyer for dividing property in a divorce is so important.
Separate property is owned solely by one of the parties and is not divided as community property. It remains the separate property of the spouse to whom it belongs. This includes:
- Property a spouse owned prior to the marriage, which has remained separate property with no comingling with community property (or which can be shown to be separate property, despite comingling. This includes any property with, real estate being the most common.
- Gifts given to only one party.
- An inheritance by one spouse.
- A personal injury settlement from a lawsuit belongs to the person who was injured. One exception is that portion of the settlement funds, which were identified as compensation to the injured person for lost wages, since income from work is considered community property.
Identifying Community Property
In Texas, all property is considered community property unless it is proven to be the separate property of one party or the other. Community property will usually include:
- All real estate acquired during the course of the marriage no matter how the names on the title are listed. This includes real estate that may be located in another state if, at the time it was acquired, it would have been considered community property under the laws of Texas.
- All property, like furniture, cars and even the family pet are community property.
- Wages and other forms of compensation paid for work performed that was earned by each party during the course of the marriage.
- Value of a small business or professional practice started during the marriage. This includes the commercial good will of the business or practice and often requires expert analysis to determine the value.
Distribution of Retirement Plans and Benefits
Texas law requires the Court to determine the rights of each party in all pension or retirement plans or any other employee benefit plan. An experienced family law attorney will prepare the required documents in order for the plan administrators or employers to properly disperse the funds according to how the Court orders them to be distributed.
How the Community Property is Distributed
If the parties put together their own Marital Settlement Agreement dividing their community property, the Agreement must be presented to the Court for approval. If the Court finds the Agreement is “just and right,” it will incorporate it as part of it final order.
Property division that is “just and right”, as the law requires, means a fair and equitable distribution. With this in mind, the court considers can consider virtually any relevant factor. Some of the most common ones are:
- The length of the marriage.
- The role of the parties during the marriage. For instance, whether one was employed or pursued a career while the other stayed home to care for children.
- The education, earning ability and employability of both parties.
- Each party’s health.
- Each party’s age.
- Whether either party engaged in any fraud by trying to conceal assets.
- Whether one party was at fault in the break-up of the marriage.
- Which spouse has custody of the children.
- Tax consequences to either party depending on how the distribution is ordered.
In making the “just and right” distribution order, the Court has wide discretion. For example, the Judge may order that property, such as the family home or other real estate, be sold and the proceeds divided. Another option may be for one party to buy out the interest of the other party. One party may keep the house and the other one receive the money that is in a savings account. The division does not have to be 50/50. Those factors listed above could lead the court to make a distribution that is not equal as long as it has good reasons to justify its order.
If I’m in the Process of Divorcing My Spouse, Is My Current Income Separate Property?
Many divorcing spouses want to know if they’ll be able to retain all of the money they’ve earned after the divorce has been filed but before it’s finalized. In short, Texas law says that community property (or, in other words, property of the marriage) is categorized as such until a divorce decree is entered. To be sure, up until the very date that the divorce is finalized, any money you earn or property you acquire likely will be considered community property.
Will the Judge Divide Our Property in Half?
When spouses decide to divorce, many are under the assumption that the community property rules in Texas require a judge to divide property 50/50 between the spouses. While Texas is not an “equitable distribution” state (in which a judge will divide property based on what’s fair to each of the spouses), a Texas judge still has discretion when it comes to property division. Under Section 7.001 of the Texas Family Code, the court is supposed to order a division of the estate “in a manner that the court deems just and right.”
In other words, the court will take into account a number of different factors when dividing marital property—some of which can affect the quantity of distribution—including but not limited to:
• Difference in the spouses’ earning ability;
• Who has been granted conservatorship of the child; and
• Fault in the breakup of the marriage.
Contact property division lawyer Jeff Anderson today. He has the legal experience and talent to guide you through the property division process and make sure your division is fair and equitable.
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