How to divide your property fairly during a Divorce, Man sitting on bench

How To Divide Your Property Fairly During a Divorce

The Texas Family code says that Community Property will be divided as the court deems “just and right.” Sounds pretty vague, right!

Essentially, “just and right” means that the Community Property of the marriage will be divided in a fair manner.

Texas is one of only 9 states that distinguishes between Community Property and Separate Property. Basically, all property acquired by either spouse is presumed to be Community Property.

While Community Property is presumed in this situation, a spouse could possibly try to prove, through clear and convincing evidence, that the asset is really his/her own Separate Property.

If such asset or property is found to be Separate Property, then the court cannot divide such property between the spouses but will actually award such property to the spouse who owns such Separate Property.

Separate Property includes any property accumulated by a party prior to the marriage, money from a personal injury type of case except for lost wages or money acquired as a gift or as an inheritance if someone died. 

Community property is property, assets, money, etc., that is accumulated during the marriage. However, just be aware that in some rare cases, Separate Property can be transformed into Community Property.

Also, one of the parties who owns Separate Property could owe “reimbursement” to the community estate for any money used towards such spouse’s Separate Property. Again, these are rare situations and can be very costly to pursue and are to complex to discuss here.

How to Determine a “Just and Right” Division?

So, what circumstances and facts are needed to determine a “just and right” division? The judge may look at the possible earnings of the parties, which party was the main child caretaker, the difference between the educational background and the ages of the spouses. The judge could also look at who was at fault of the marriage.

All that being said, it still comes down, in most cases, to a 50/50 split – although at times it is a 45/55 split. Therefore, it is usually a good idea to avoid spending a great deal of time and money on proving fault, etc., because the ultimate result is usually minimal as to the division of the property.

Unless you have a very large community estate, it is probably not in your best interests to spend great amounts of money for a 5% difference in the division of property.

As to specific Community Property, such as retirement, the family home and other assets, those are topics that will be discussed in another blog as each type of Community Property should be addressed in more detail.

However, this blog article explains the basics of Separate Property, Community Property and a “fair and just” division and should be enough information to give a party a basic understanding of how property is divided in the case of a divorce.

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