Division of Property in Texas
When two people divorce, property division can be the most complex area of the divorce. Texas is a community property state which means that all property is presumed to be property shared by both spouses. This does not mean all property owned by a spouse is part of the marital estate.
With regard to community property, there is a statutory "rebuttable presumption" in the Texas Family Code that all property and debt in either spouse's name is considered community property/debt and thus divisible in a divorce. A rebuttable presumption means the person who claims the very opposite of the presumption has the burden to prove his point. For example, if a spouse owned a 1968 Chevrolet Camaro prior to marriage, he or she must prove the car is not community property thus subject to division in divorce and should remain his or her separate property. This means the spouse must prove he or she purchased the car before the marriage and that it was not purchased during the marriage.
Other items considered separate property and not divisible in a divorce, so long as it is proven, is a gift to one spouse and an inheritance to one spouse. As an example, if the husband's father gave the husband, and the husband only, the 1968 Camaro during the marriage, it is the husband's separate property. Further, if the husband's father died while the husband was married and the Camaro was inherited by the husband as a result of the father's will, it would also be the husband's separate property and not to be divided in a divorce.
The division of property in a divorce can be tricky; particularly if you have significant and varied property. Property, not only includes real property such as your house, but also stocks, bonds, retirement, pension, 401(k), art, household furnishings, businesses, just to name a few. Since all property is presumed to be community property, anything you claim to be separate property must be proven to be separate property if your divorce were to go to trial.
It is also important to note, some property can be both community and separate property. For example, your spouse is entitled to a fair and equitable division of your 401(k), pension, or retirement that accrued while you were married but not any accrued prior to your marriage.
Also subject to division in a divorce is debt which should never be forgotten. Many people are under the false impression if a debt is in one name or another, that debt is the debt of the person whose name is on the debt. However, if the debt was acquired during the marriage, it is community debt subject to division in divorce. Division of debt can be a complex part of any divorce.
The family law lawyers at The Decker Law Firm, a Dallas/Fort Worth area (D/FW) firm, have the experience needed to analyze complex property issues, apply the proper law, and provide aggressive representation to come to a division of property that is just and right for you.
Because every legal matter is unique, please contact us for an initial consultation to help ensure you have the information you need to make the appropriate decisions for your specific circumstances.