In a Texas divorce the two key battles are over child issues and property division. These rules are simple at their basic level; but become complex when applied to divorces and their individual facts. Most Texas divorces resolve without too much trouble in the property division but sometimes problems arise. There may be complex assets or debts in the marital estate to address in your Texas divorce. Disagreement may arise about the separate or community property status of assets. In these divorces it is necessary to hire a Texas divorce attorney to represent your interests.
Your divorce may include a broad range of assets subject to division. These assets may include:
- Your home
- Vacation homes and real estate investments
- Individual retirement accounts (IRAs)
- Employee retirement benefits such as 401k plans and pension benefits
- Military retirement benefits
- Businesses and other investment assets
- Executive income
Texas is one of the few community property states in the country which divide property in a divorce under complex and confusing rules. The more assets one or both spouses had before marriage, the more complex the property division portion of your divorce will likely become. It is easy under community property rules to forego your rights to both your separate property and community property. An experienced divorce attorney understands these rules and how to defend your property rights in court.
Community Property in Texas
Texas is a community property state. We have some unique rules about property ownership and the manner in which family courts will divide property. Most, but not all, property acquired during a marriage is community property. Community property is subject to a just and right division in a Texas divorce. People commonly believe community property is split 50/50 but this is not true. Community property only has to be split in a “just and right” manner.
Property acquired prior to marriage is the separate property of the spouse who owned the property coming into marriage. Certain property acquired during marriage, such as inheritance, is still separate property although obtained during the marriage. Separate property is not subject to division in a divorce; but the spouse claiming it is not community property must prove the property is separate property.
Many people find working with a Texas divorce lawyer helps protect their financial and property interests in a divorce.
Dividing property in a Texas divorce
In almost every divorce the spouses will come to an agreement about how to divide assets without requiring a trial before a family court to let a judge or jury divide property. Not only is it usually more expensive to allow the court to divide your property but you likely will not get the assets that will be the most important to you. Judges do not want to spend their time deciding who gets the toaster or television, either.
In a Texas uncontested divorce the spouses agree to divide up the assets by themselves.
In a contested divorce there are many techniques to arrive at an agreement on property division. The spouses may reach an agreement on their own or reach a negotiated agreement through Dallas or Fort Worth family law attorneys. An agreement can also occur through a collaborative law agreement.
If the spouses cannot come to an agreement with or without the help of lawyers, they can enter into mediation voluntarily or by court order. Mediation uses a neutral third party to help the negotiation along in the same way as a marriage counselor. The mediator does not make any decisions for the spouses.
If no agreement is reached then the parties and their respective family law attorneys will have a trial to determine the property division.
How a Texas divorce attorney can help you divide marital property
Although I can be a very aggressive family law attorney when I need to, no amount of aggressive representation or super-secret lawyer tricks will let you take everything from your spouse and give you everything. I know people like to threaten that they will take everything from their spouse but it’s nothing more than a threat. There’s no law that allows you to take everything. There’s also no law that will allow your spouse to take everything from you. Don’t let your spouse scare you into thinking he or she will leave you homeless and broke.
It’s great if you can get the house and everything in it, but if you can’t afford the mortgage payments your victory will be short lived. A short lived victory won’t make you happy. Property division should not be just about what you want but also what you need for your current and future financial security. If my time working in financial services prior to my legal career taught me anything, it’s that you cannot ignore your long term financial needs.
Additional property division issues in a Texas divorce
- Qualified domestic relations orders (QDROs) to divide retirement plan benefits
- Dealing with dividends in a Texas divorce
- 7 financial issues in a Texas divorce
- What are the community property rules in Texas?
- Why does my spouse get part of my 401k?
- Financial recovery from a Texas divorce
- What happens when my divorce decree does not include my 401k account?
- Military retirement benefits and Texas divorce
- What is the difference between alimony, spousal support and spousal maintenance?
- Dividing IRAs in a Texas divorce