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Dividing Marital Property

Divided house

How Property Is Divvied up During a Divorce

When spouses make the decision to get a divorce, all of their property and debts are up for division, either through agreement between the spouses or through the courts. For many divorcing spouses, the division of property and debts is one of the most complicated, contentious and difficult parts of the divorce.

Identifying Assets

The first step in dividing up marital property is to identify all assets and debts and assign them value. Property such as your house, cars, furniture and other valuable items need to have a dollar value attached to them so you and your spouse or the courts can decide how to divide the property. Additionally, you should make sure that you know exactly how much you owe in debts, especially if the debts were incurred during the marriage.

There are two types of marital property: community property and separate property. You and your spouse will need to work together to decide what property is communal and what property is separate in order to facilitate division of property.

  • Community Property – Community property is all of the property acquired by the spouses over the course of the marriage. In the state of Texas, all property is presumed to be community property unless otherwise specified. If divorcing spouses are unable to come to an agreement about how to divide community property, the courts will divide it fairly between the spouses.
  • Separate Property – Separate property includes gifts, debts in only one spouse’s name, inheritances and property acquired prior to the marriage. In order for an asset or debt to be considered separate property by the courts, the divorcing spouses must come to an agreement that it is separate property or be able to prove that only one spouse owns or is responsible for the property or debt.

Division of Property

It is important to keep in mind that property and debts are often not divided equally between the divorcing spouses. If spouses do not come to an agreement about how property and debts will be divvied up, the courts will distribute them in a way that they believe is fair. There are a number of factors that play into how the courts decide to divide property and debts, including:

  • Spousal Maintenance: If alimony payments are in order, the courts are likely to divide the property unequally between the spouses, as one spouse will need more financial support than the other.
  • Earning Capacities: If one spouse has a significantly higher earning capacity than the other, they are likely to receive a smaller share of divided property than their spouse.
  • Child Custody: If one parent has sole custody of children, they may receive a large share of property from the courts, as they are primarily responsible for financially supporting any children of the marriage.

Hiring a Lawyer

It is imperative that you hire a lawyer to represent you in your divorce, as the laws surrounding marital property are complicated. Navigating the legal statutes surrounding division of marital property requires the guidance of a skilled professional. Because Texas laws surrounding marital property and debts are complex, many divorcing spouses have difficulty coming to an agreement on how property should be divided. However, with the help of an experienced lawyer, divorcing spouses can work collaboratively to divide property and debts and will better understand why and how the courts divide their property.

Ultimately, dividing property and debts can be a particularly challenging aspect of a divorce, as it requires significant financial documentation and working closely with your spouse. However, with the help of a skilled attorney and even a cursory knowledge in how the courts divide property between spouses, you will be well equipped to successfully navigate this aspect of your divorce.