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Divorce: Division of Property

Texas is called a community property state; this means that all income earned and property acquired by either spouse during the marriage is community property and belongs to both spouses equally. Therefore, it must be split equally between them when they divorce. Further, this also applies to all debt incurred during the marriage. Debts are considered to be community property and belong to both spouses and are to split equally between them. However, if ‘just and right’ reasons are presented to the court why a certain asset should be distributed differently, the court may order an unequal division.

The court begins its evaluation by presuming that all property held by either spouses during the marriage is community property. The definition of community property according to Texas law is any property acquired or earned during the marriage that is not separate property. Where a spouse wants to keep a certain asset(s) free from division, the spouse must prove by way of clear and convincing evidence that the asset is separate property.

Separate property includes:

Anything that belongs to one spouse before the marriage and was kept separate throughout the marriage
Property that was given only to one spouse during the marriage; for example, a gift given by a friend or family member of one spouse or an inheritance left for one spouse.

Money received from a personal injury lawsuit or settlement remain the separate property of the injured spouse.

However, if there is money that was included in the compensation for loss of earning capacity during the marriage that part of the money is not separate property. For example, where the injured spouse is compensated for vacation time taken to heal or attend to medical treatment during the marriage; this amount of the compensation is not separate property but falls into community property.

Once proof is provided that an asset is separate property the court cannot award it to the other spouse.

The most common types of property divided at divorce is real property which includes the following items:

Family home
Personal property like jewelry and clothing
Intangible assets like income, dividends and benefits

The discretion to distribute the community property equally lies with the court’s decision as to what is fair. To adjust the presumption of equal division certain factors come into play such as:

Education
Age
Health of the spouses
Respective earning capacity
Skills
Business opportunities
Employability
Primary caregiver to the spouse’s children
Whether one spouse is at fault for ending the marriage

If the divorcing spouses can agree on how to divide the community property, the court will accept the negotiated agreement and will not get involved in the division process. For example, the divorcing spouses can agree whether to sell the family home and split proceeds. However, if the divorcing spouses fail to agree on who has what, the dividing of the community property will be left to the court.

For representation and legal advice on the division of community property as well as proving separate property, seek out a divorce lawyer in Houston Texas with experienced divorce lawyers.

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Michael Busby is a Houston divorce lawyer who has been in practice for over 20 years and appears daily in the Family Law Courts of Harris County and Fort Bend County Texas

Busby & Associates , have two Houston Offices, one in Chinatown, Houston Texas and another in Independent Heights, Houston, Texas. Michael Busby is Board Certified in Family law by the Texas Board of Legal Specialization.